Defamation
by Gubb and Partners – 2006
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A parent recently overheard a conversation at the local golf club in which a teacher at your school is alleged to have said that John Smith (a student) is just like his father - lazy, arrogant, and doomed to fail. The parent told Mr Smith about this conversation and he is now threatening to sue for defamation. What should you do?
In our increasingly litigious society, teachers are becoming targets of defamation actions. It is also important to note that there are increasing lines of accountability in what we say and write, and greater legal obligations in terms of access to information, such as those provided by the Privacy Act and Official Information Act.
In general terms, something is said to be defamatory if it causes another person to be the object of public scorn, hatred, or revulsion, if that other person's reputation and good name are sullied, or if the person's livelihood is affected, and the statements are untrue.
Defamation actions also require that the statements are published, which simply means to communicate to at least one other third person.
The statements in the above case may amount to defamation because it appears on the face of it that they were intended by the author to damage the reputation and 'good character' of John Smith and his father in the minds of reasonable-thinking people, and they were certainly published.
The defamation action, if any, would have to be taken against the teacher who uttered them. There is no agency between the school and the teacher, in the sense that the school did not authorise the teacher to make those statements.
The matter may be capable of resolution if the teacher agrees to make a public retraction of the statement and an apology.
In some Australian cases, schools have successfully claimed the defence of 'qualified privilege', which allows defamation to be excused if made in good faith in certain specific circumstances, such as when made by someone censuring a person (student) over whom lawful authority is held, or when made to someone who has an interest in knowing the truth, such as a parent. It is important to note that the defence would not be available if excessive ill will, malice, or any other improper motive is found to exist.
As a general rule, schools need to be aware that the Official Information Act and the Privacy Act are increasingly being used to unlock files and records that had been closed, or to which there had been restricted access. The Privacy Commissioner and Ombudsman are frequently asked to investigate the rights of parents, students, employees, and the media to files when declined by schools, particularly when they go 'into committee' and exclude the public.
For the above reasons, written records and oral statements should avoid personalised attacks or derogatory comments, which could form the basis of a defamation action.
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