Law

Failed attempt at defamation by email: win for Pragma in the Courts

By 16 January, 2019 January 21st, 2019 No Comments

A recent decision handed down in the District Court of Western Australia has reinforced that caution should be awarded to commencing a defamation proceeding where publication is only made to one person.

Background

The case concerned alleged defamation by email published to a single strata company manager in relation to alleged mis-management of short-stay apartments contained in a strata development.

The law recognises that people have an interest in their reputation which may be damaged by the publication to others of defamatory matters about them.[1] To have defamed the Plaintiff, the email needed to have diminished the respect and confidence in which the Plaintiff is held, including with respect to their character and reputation in business.

It is the ordinary and natural meaning of the alleged defamatory words used which should be considered as well as the imputations arising from the words being complained of. Where the person to whom the words are published possesses additional information then, in combination with the additional information, the words may create an innuendo and render the publication defamatory.

Decision

The Court held that the email did not constitute defamation. It was defended successfully by Pragma on the grounds that there was a belief based on reasonable grounds of a need to investigate the alleged mis-management, the matters complained of were true in substance and in fact and that qualified privilege applied as the email was sent without malice.

In order for justification to operate as a defence, the material statements must be proved to be substantially true in substance.[2] It was held that the matters referred to in the email gave rise to well-founded complaints, all being true in substance and in fact and all requiring investigation by the appropriate authority.

As to qualified privilege, it is a defence where a person who makes the publication has an interest or duty to make it and the person to whom it is made  has a corresponding duty to receive it.[3] It was held that the person to whom the publication was made, as director of the strata manager, had an interest in receiving information from the Defendant to ensure that the strata company complied with its statutory and contractual obligations. The Defendant’s motivation to provide the information was based on a duty to protect the other owners of the apartments and hence could not be said to be motivated by malice.

Key takeaway

Defamation proceedings are often costly and complicated to litigate. You should approach commencing defamation proceedings with particular caution, particularly where the alleged defamatory material is only published to one person. See our previous post on issuing a concerns notice as a preliminary measure here.

The firm wishes to thank Clinton Russell, of Counsel, who appeared for Pragma’s clients in this matter.

[1] Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 [1].

[2] Defamation Act 2005 (WA), s 25

[3] Adam v Ward [1917] AC 309, 314