What is defamation?
Yesterday, we learned Attorney-General Christian Porter is suing the ABC for defamation over material written in an online article published on February 26, 2021. Here’s a quick explainer on defamation - a notoriously complicated area of law.
What is defamation?
Defamation is where a person accuses someone of publishing or distributing information that damages the person's reputation. In the past, high profile Australian cases have included Geoffrey Rush suing News Limited for claims he sexually assaulted a fellow actor, and Rebel Wilson suing Bauer Magazines for publishing false claims that Wilson lied about her age, real name and childhood.
Australia's defamation laws mean the media has to not only report the truth, but be able to prove it in court. And proving a sexual assault occurred is notoriously difficult - that’s why media organisations often use the word “alleged” or “accused” after naming someone.
How do you prove you’ve been defamed?
There are three elements you need to prove:
1. That the communication has been published to a third person (an ABC reader);
2. That the communication identifies (or is about) the plaintiff (Porter); and
3. That the communication is defamatory.
What will Christian Porter argue?
We know from documemts published yesterday that Christian Porter’s legal team will argue the ABC article carried “defamatory imputations” (suggestions) that Porter raped a 16-year-old girl in 1988, was a suspect in a police investigation, and that his actions contributed to the alleged victim taking her own life. They will argue this defamatory material is not substantiated by fact, and can’t be because the allegations can never be proved in court because of the death of the alleged victim.
Porter’s team will argue that, even though the Attorney-General wasn’t named directly, there was enough information in the article for the public to easily link the claims to him.
Why is this all significant?
The fact there’s going to be a civil trial means that Porter has put himself forward to be questioned under oath in court. That’s something a lot of people have been asking for. While it won’t be in a criminal court, lying under oath in civil proceedings is still a serious offence.
Until the ABC files a defence, we won't know how they will proceed with this case. There are a few options available to them, but there's been enough speculation as is, so we will bring you that information once it is confirmed.
Until then, please let us know if you have any questions by reaching out at hello@thedailyaus.com.au.