Sometimes it’s hard to distinguish the difference between wrong and right. Whether publishing information about another individual has consequences or whether you have the right to publish this information. When false or damaging information is accessible to the public, what are the consequences? In many cases, the publishing of such content can result in defamation.
Defamation:
On January 1st, 2006, the Defamation Act of 2005 in NSW commenced. This Act was put in place to protect both the professional and personal reputation of individuals, or businesses when false or damaging information has been said or published about them. Claims can be made in the court of law by a plaintiff, as long as proof of defamation is presented to the court. According to the Defamation Act 2005 (NSW) the plaintiff must provide four things in order to claim compensation for reputational damage:
1) A false statement
2) Publication or communication of that statement to a third person
3) Fault amounting to at least negligence
4) Damages
Defamatory material doesn’t just have to be published in an article or any piece of writing. This material can take shape as blog posts, art, music, poems, images, text messages, a conversation, and a news report, along with many others. These are all examples of the two types of defamation, libel and slander. Libel is a term used in court for written defamatory, while slander means spoken or oral defamatory. Both can be used as evidence for damage to reputation in the court of law.
Natalie O’Brien vs ABC defamation case:
In 2013, an investigative journalist, Natalia O’Brien, was criticised for an article she wrote and published in The Sun-Herald titled “Toxic substances found in reserve”. Published on July 7th 2013, the article entailed that three toxic metals – mercury, lead and chromium – along with other toxic chemicals well above health levels were found at a local playground at Hillsdale Park, in Sydney’s East.
In order to gather these samples of toxic substances around the Hillsdale area, it is important to have an experienced and qualified professional conduct these tests. In O’Brien’s case, Mr Helps was the man behind the testing, being that his information was the core element of her article surrounding Hillsdale’s toxic playground. Mr Helps gained confidence in O’Brien by stating he not only had a permit for “Feral Mercury recovery” in relation to an area in Victoria, but also had other experience in environmental management. The playground, identified in the article was situated across from an Orica Plant site where the original tests by Mr Helps took place. After conducting soil tests near the Orica site and road, the tests supposedly showed toxic levels of mercury, lead and chromium.
The article was then published on July 7th by O’Brien, insinuating that the EPA were “accused of covering up the discovery of some of the most poisonous substances on earth…”, as well as attaching an image of children playing on the playground, captioned “At risk: children play in a park adjacent to Grace Campbell Circuit at Hillsdale, where toxic metals and chemicals were discovered”. This photo, caption, and overall the article reinforces the idea that the tests were taken under the playground where toxic substances were found at dangerous levels. However, that is not the case.
In May 2013, EPA called a press release announcing they had received information from a concerned member of the public about hexachlorobenzene (HCB) present in the soil, leaking from the Orica site. This information was given to them in an email from Mr Helps who discussed his results with no pinpoint location or contextual information. With rising concerns about the levels of HCB, the EPA conducted their own tests, confirming that all 15 tests around the site and nearby area concluded that levels were “well below the national health inspection levels”.
The ABC programme ‘media watch’, released an audio-visual, along with a transcript on their website, expressing their concerns and complaints towards Ms O’Brien’s article. During this broadcast, the “Scary, toxic beat up”, the reporter states “We believe claims of Natalia O’Brien’s story is just wrong”, proceeding to present their extensive research into the article’s information and detailing, gathering their own first-hand information into these said toxic substances. After Media Watch spoke directly to EPA, it was identified that the EPA also thought the article was wrong, agreeing that the “soil underneath the playground was never part of the tests”.
Why O’Brien sued for defamation:
After the ABC broadcasted an audio-visual detailing the wrong-doing by O’Brien and The Sun-Herald, O’Brien sued the ABC for defamation. She was convinced that the ABC statement towards her article was damaging to her professional reputation and she filed for compensation for these damages. She stated that the ABC had publicly deformed O’Brien’s career as a journalist by presenting:
- She engaged in trickery, because she published an article about toxic substances found a children’s playground, knowing the tests had not been conducted in this area
- She created unnecessary concern in the community
- Acted irresponsibly as a journalist for failing to consult experts
Defences:
In every case, a defendant may raise a defence to avoid civil liability. In this case, according to the Case’s judgement file the defendants (ABC) pleaded “defences of truth, contextual truth, the defence of fair comment at common law, the defence of honest opinion under s31 of the Defamation Act 2005 (NSW) and the defence of qualified privilege at common law….”.
The final decision:
In the making of the final decision, the judge McCallum J stated:
“However, my assessment of Ms O’Brien’s evidence has persuaded me that she accepted what was said to her by Mr Helps without understanding it herself and without consulting someone who did. In doing so, she lent her good reputation as a journalist to an uninformed or misconceived interpretation of an important report”
It was agreed throughout the final court hearing that as an investigative journalist, Ms O’Brien failed to consult experts and to gather an appropriate understanding herself about the toxic substances shown to her by Mr Helps. The final decision ruled in favour of the defendant ABC, as the court upheld the defences of fair comment and honest opinion. This means that the conclusion of the case resulted in false defamation, where the plaintiff (Ms O’Brien) originally sued the ABC for defamation, however, over the course of the case, the supreme court saw in favour of the defendant (ABC).
The lesson for journalists:
Journalists are responsible for the content and information they produce to the public and whether this information is factual and reliable. If false information is published without proper approval from numerous experts, or appropriate research, especially of such extent to raise serious concerns amongst a community, it is the journalist’s responsibility to be accountable for their actions. In this case, although the ABC criticised Ms O’Brien as a journalist and her profession, Ms O’Brien originally published false and highly dangerous information that the ABC corrected on one of their programmes.
Why false defamation occurs:
In cases, similar to the O’Brien vs ABC case, there are grey areas that allow the possibility for the defendant to win over the plaintiff. Not all cases end the way that is expected. Defamation is important for a journalist to protect both their professional and personal reputation when damaging and false information is published about them. However, it is important to distinguish the difference between whether this damaging information is true or false. It is in the hands of the journalist to ensure to do the appropriate amount of research, use reliable sources, and if need be consult experts. If these important steps aren’t completed before an article is published, causing tremendous concerns amongst a community, it is up to the journalist to take the consequences that come their way.
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