This article about defamation in bodies corporate has been supplied by Ben Seccombe and Ben Stanford, Mahoneys.
It’s an all too common occurrence – tempers can flare when people are forced to come into contact with others that they wouldn’t usually associate with. When there are differing views in a strata scheme (whether about the standard of caretaking, management, decisions made by the committee, or just disputes between different lot owners) it can often devolve into one side taking their dispute too far and making false or damaging statements about the other. That is where the law of defamation can step in to help.
Defamation can take many forms. Over the last few years we have acted for clients in respect of a wide gamut of defamatory matters, including:
- oral conversations, where allegations of serious abuse were made to multiple customers of our client in an attempt to drive down their business;
- official body corporate newsletters alleging illegal misconduct by the caretaker;
- communications between committee members and lot owners alleging dishonesty and poor work standard by the caretaker;
- false google reviews of a resort published by lot owners under false names; and
- links and snippets of articles alleging fraud showing up in search results published by search engines.
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In short, any publication (whether in writing, pictures, video, or spoken) that may cause a person seeing or hearing it to think less of someone else may be defamatory.
To take action against someone for defamation, you need to be able to prove:
- that the defamatory material was published to someone other than yourself;
- that there was not a proper basis for making the publication (i.e., the matters in it were not supported by proper evidence);
- that the people that the publication was made to understood that it was referring to you; and
- that it caused harm to your reputation.
If you believe you have been defamed it is important that you seek advice as soon as possible – the timeframe for bringing an action is only 1 year, and there are numerous defences. It is also important to strike while the iron is hot and while the defamatory material is fresh in people’s mind.
If you think you have been defamed, or have been accused of defaming someone else, we can help you to protect your reputation. Please reach out to discuss your options.
Ben Seccombe
Mahoneys
E: bseccombe@mahoneys.com.au
P: 07 3007 3753
Ben Stanford
Mahoneys
E: bsandford@mahoneys.com.au
P: 07 3007 3722
This post appears in Strata News #404.
Have a question about defamation in bodies corporate or something to add to the article? Leave a comment below.
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This article has been republished with permission from the author and first appeared on the Mahoneys website.
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Well said Ross. We have a bully chairperson who wrote to all owners claiming he had affidavits against another owner who had asked for evidence of the financial benefits (claimed by the chair who wanted new caretaker contracts.) and was then labeled as a disgruntled owner and named him in same sentence as his “sworn affidavits” statement. When asked by the named owner to provide the affidavits he said they were his personal property and not the committees!
It takes money to stop this behaviour. There must be a more equitable way to challenge bad bully behaviour.
Re Defamation. Mahoneys refers twice to defamation of caretakers. It is not uncommon for Committee members to defame lot owners, both orally and in writing, who normally let it through to the keeper because of perceived costs of litigation. It is true that defamation is a very expensive jurisdiction, the costs of which far outweigh any likely damages received from the offender. The bully-boys (and girls) rely on this to get away with it. However, there is a relatively cheap option if the owner’s main aim is stop the defamation happening again; ie get your solicitor to issue a Notice of Concern. May cost about $600, but it is money well spent and normally will stop the bully-boys in their tracks, especially if they will have to pay any further costs out of their own pockets.. The added benefit is that if the Notice doesn’t work, any further defamation may be construed as malicious and the damages can go through the roof, making it worthwhile pursuing the defamer in the court system. I know from personal experience that a Notice can stop the rot, and from having access to a defamation specialist who took the trouble to explain how things really work in this area of the law.
Absolutely untrue that these toothless “Notices” are going to stop publication of truthful statements regarding the conduct of another Owner.
Truth is a defense to such defamation claims.
Continued litigation against the publisher of these claims would be seen as malicious.
Good point Ross – defamation can take place in a number of ways and concerns notices are an effective way to deal with defamatory comments.