DEFAMATION in the Workplace - Gossip and Bullying

When Workplace Gossip crosses the line.


General information - not Australia Specific:

In law, defamation (also called calumny, libel (for written publications), slander (for spoken word), and vilification) is the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government or nation a negative image. It is usually, but not always, a requirement that this claim be false and that the publication is communicated to someone other than the person defamed (the claimant).

In common law jurisdictions, slander refers to a malicious, false and defamatory spoken statement or report, while libel refers to any other form of communication such as written words or images. Most jurisdictions allow legal actions, civil and/or criminal, to deter various kinds of defamation and retaliate against groundless criticism. Related to defamation is public disclosure of private facts, which arises where one person reveals information that is not of public concern, and the release of which would offend a reasonable person. "Unlike [with] libel, truth is not a defence for invasion of privacy."

False light laws are "intended primarily to protect the plaintiff's mental or emotional well-being." If a publication of information is false, then a tort of defamation might have occurred. If that communication is not technically false but is still misleading, then a tort of false light might have occurred.

Australia

1. What is defamation?

The law of defamation protects the reputation of individuals and corporations by permitting the injured party to sue for damages. There is no specific legislation dealing with the issue of defamation on the internet. Each Australian State takes a slightly different legislative approach to defamation.

Generally the following elements must be present to establish defamation:

(a) defamatory matter (including the written or spoken word, or an image) must be published;

(b) defamatory matter must be published to a third person (ie. at least one person other than the complainant); and

(c) the complainant must be identified.

See the Defamation Fact Sheet in relation to who can prosecute and the defences against prosecution.

Defamation can be a civil offence and a criminal offence.

Australian law tends to follow English law on defamation issues, although there are differences introduced by statute and by the implied constitutional limitation on governmental powers to limit speech of a political nature established in Lange v Australian Broadcasting Association (1997).

Since the introduction of the uniform defamation laws in 2005 the distinction between slander and libel has been abolished.

A recent judgment of the High Court of Australia has significant consequences on interpretation of the law. On 10 December 2002, the High Court of Australia handed down its judgment in the Internet defamation dispute in the case of Gutnick v Dow Jones. The judgment established that Internet-published foreign publications that defamed an Australian in his or her Australian reputation could be held accountable under Australian libel law. The case has gained worldwide attention and is often said, inaccurately, to be the first of its kind. A similar case that predates Gutnick v Dow Jones is Berezovsky v Forbes in England.^[24]

Slander has been occasionally used to justify (and with some success) physical reaction, however usually the punishment for assault is only slightly reduced when there is evidence of provocation.

Among the various common law jurisdictions, some Americans have presented a visceral and vocal reaction to the Gutnick decision.^[25] On the other hand, the decision mirrors similar decisions in many other jurisdictions such as England, Scotland, France, Canada and Italy.

Controversial uniform legislation was passed in Australia in 2005 severely restricting the right of corporations to sue for defamation (see, eg, Defamation Act 2005 (Vic), s 9). The only corporations excluded from the general ban are those not for profit or those with less than 10 employees and not affiliated with another company. Corporations may, however, still sue for the tort of injurious falsehood, where the burden of proof is greater than for mere defamation, because the plaintiff must show that the defamation was made with malice and resulted in economic loss.

DEFAMATION IN THE WORKPLACE

All information must remain confidential.

Especially by HR, who should not gossip or take any action to undermine of go after the victim as the ‘problem’. It is not HR’s responsibility to say anything to the person who they say is harassing and/or bullying them or to spread rumours about someone. If HR participates in spreading rumours they may be subject to a defamation action.

One common manipulative action the defamer takes is although knowing the information is false, they go ahead and claim it as fact. This is when all witnesses and records must be kept for evidence.