It’s very rare for your average person to get sued for defamation. It’s also very rare for your average person to die in a plane crash. But your odds of dying increase significantly if you catch a plane every day. The upside of having your own content marketing hub is you get to build an audience, like a publisher does. The downside is you face all the same risks a publisher does. And your odds of getting threatened with a lawsuit for defamation increase if you’re publishing every day.
Like, for instance, if you’re producing content. I should know. I’ve been threatened with defamation lawsuits more than once.
In theory, getting slapped with a lawsuit for defamation sucks. In practice, it’s worse than that. It sucks more than you can possibly imagine. And no matter what the outcome, no-one wins. Not you, not the person suing, not anyone. So learn from my experience.
Don’t trust your sources
The first time someone threatened to sue me, it was completely fair enough. I had reprinted a secondhand report, verified from three sources, about a high-profile guy getting threatened by convicted criminal.
I was confident the story was true. Problem was, the guy who was threatened—the victim—had carefully cultivated a reputation as a tough guy himself. He didn’t take kindly to being portrayed as the victim of bullying. His memory of the event was very different to my sources.
When the lawyers descended, all backup for my story evaporated. None of my sources wanted to come forward. And it didn’t matter anyway. We weren’t arguing over what happened. We were arguing about the victim’s reputation.
Where you get trapped
That’s the thing with defamation. It frequently hits you where you least expect it.
I was once got the defamation threat from a builder who claimed an article I had written had sullied his reputation. He hadn’t been named in it. But the person who was interviewed for the article mentioned in passing that he had changed builders during a project, because he was unhappy with the quality of work.
That first builder reckoned everyone in his industry would know he was the one the person was referring to.
What is and isn’t defamation?
If you’re a bit fuzzy about what defamation is, exactly, then here’s a good definition from the Arts Law Centre of Australia: “Defamation is a communication from one person to at least one other that lowers or harms the reputation of an identifiable third person, where the communicator (the publisher) has no legal defence.”
You may be thinking, “That’s okay, we don’t publish articles that would attract a lawsuit”. But that’s my point in telling those stories. Even if you’re not trying to defame someone, you could quote a source or tell a story that paints someone else in an unflattering light.
So what do you do if that happens?
The best defence against defamation
The best advice about defamation and slander I ever received was:
- The way to avoid a lawsuit for defamation is to not defame anybody
- If you are thinking of a possible defence against a defamation suit, then you are already guilty.
That sounds like non-advice, but it is spot on. Defamation laws in Australia and Britain have frequently been understood as a way for rich politicians to silence their critics. Which is true, but misses the point. The law is not about the ‘silence’ part of that sentence. It’s about the criticism.
Critics of the laws underplay how awful and humiliating it is to be defamed in a newspaper, magazine or website. It’s like being slapped while riding on a bus—unexpected, painful and embarrassing—but amplified to a horrible degree by the public nature of it. In a major city newspaper, it’s crippling. On the web, to a potential audience of millions, it’s your worst nightmare.
How to lose a defamation lawsuit
A few years ago, the then-Federal Treasurer Joe Hockey sued a Sydney newspaper for defamation. He said an article about political donations and the link between donations and access to politicians defamed him. The court determined he had been defamed—but not by the report.
Instead, the court said he was defamed by a poster promoting the story. The poster had the headline “Treasurer for sale”. The court also said a tweet which showed that same poster headline was defamatory.
It requires a keen eye to distinguish the difference between opinion and attack.
Everyone is entitled to their opinion, but no-one is entitled to attack anyone else. And if you can’t tell the difference between those two positions, it’s best that you put your mouse down and walk away from the keyboard. If you are in any doubt at all that something you are about to publish may or may not be defamatory, don’t call your lawyer. Just don’t publish it.
Even if you think what you are writing will be taken in jest, don’t assume your victim will feel the same way.
And don’t talk yourself into publishing something just because you think it’s true, and that truth must be a defence in defamation. Just because you are convinced doesn’t mean you can prove it in a court of law. And as per the earlier advice—if you are thinking of how you will defend yourself, that indicates that you know, in your heart-of-hearts, that you are guilty.
Avoiding defamation: The awkward talk
So if you still find yourself in a situation where someone is saying you defamed them, there are some important steps you should take.
Firstly, know that it’s rare for someone to just turn around and slap a lawsuit on you (although that can happen). More often than not, they are going to send you angry emails, letters or phone calls. They may say that they are going to talk to their lawyer. This is a good thing—it means they haven’t talked to their lawyer yet.
So it’s important that you talk to them. That may seem difficult, given that they will want to shout at you. But it’s vital you keep the conversation open. You will face a world of misery and pain as you are dragged through the courts. Don’t stop the conversation, no matter how unreasonable the other person appears to be.
No matter how uncomfortable a conversation is, it will never be as uncomfortable as a lawsuit.
The hardest word
Secondly, apologise profusely, and genuinely. An apology may well diffuse the situation, and save you tens of thousands of dollars in legal fees and payouts if a court agrees you have defamed this person.
Thirdly, take down the offending material (assuming it’s online). Delete any reference to the person and anything that upsets them before putting it back online. If it’s not possible to take it down, if you have, say, printed it in a magazine, see if you can recall and pulp it (which will be expensive, but probably cheaper than a lawsuit).
Finally, talk to them about the best way to make amends. This may involve publishing an apology, or giving them some sort of free advertising, or giving them some space on your site or in your publication to put their point of view. You can to disagree with their point of view, but if you do so, I suggest you do it briefly and politely.