Can Barnaby Joyce take action for defamation?

By Rolf Howard, Managing Partner, Owen Hodge Lawyers

The recent news of the actions of former Deputy Prime Minister Barnaby Joyce brings to light many social and legal issues. Politicians across NSW have long enjoyed having the press give deference to their private lives. However, recently the affair between former Deputy Prime Minister Barnaby Joyce and one of his staffers was brought to the public’s attention.

Many individuals are outraged at the former Deputy Prime Minister’s actions, as he has taken a strong legal stance against same sex marriages under the guise of it damaging the fabric of the Australian family. Now, many are lining up to lambast Barnaby Joyce as his own actions seem to have undermined the lives of his own wife and daughters.

In a retort the former Deputy Prime Minister appears to be raising the issue of defamation of character as a retaliatory legal action against those who broke the story. However, it is highly unlikely this defense will be applicable for the embarrassing character issues Barnaby Joyce is suffering.

In 2005 the Defamation Act changed to exclude the differentiation between slander and libel defamatory occurrences. Today the law, regardless of the defamation being spoken or written, is simply defamation of character.

However, it is important to note that there are very clear factors to support a true finding of defamation of character. The three basic factors include:

• The statement must be published.
• The statement must identify one or more persons.
• And there must be damage to the reputation of another.

Damage to the reputation of another includes the following criteria:

• Harms the reputation of the person in the eyes of a reasonable and ordinary person or peer in the community.
• Leads others to ridicule another or creates hostility toward the person.
• Damages the person’s reputation either personally or publically.

To publish a defamatory statement means that the damaging statements were formally published about the person, or could be implied by the use of their likeness or description. Intention plays no part in the determination of a statement being defamatory. If a reasonable person would judge the information harmful to another, then defamation can be established. In addition, the ordinary person has to believe that the published statements, or innuendos, lowers the opinion others hold of the subject person.

While some may try to make a defamatory statement couched in “alleged” language, this is not always adequate to prevent defamation. If there is a reasonable basis for the public or peers to believe the allegation is true, then defamation can be found. If defamation is found, damages do not need to be proven.

Regardless of the seriousness of the claim of defamation, there are defenses available to those who report on sensitive issues. These defenses include the following possibilities:

• Justification – This is when it can be shown that the defamatory statements are essentially true. Truth is a complete defense to the charges of defamation.

• Consent – In this instance the person being charged with defamation can show that the person the statements have been made about agreed to the publication of the information.

• Opinion – If the person making the supposed defamatory statement is being sued over an opinion they honestly hold, and that opinion is based in fact, and the information was necessary for the public to know, then the statements may not be considered defamatory in nature.

• Qualified Privilege – This is a defense when the person making the statement makes it to another person or agency who has a legitimate interest in the information; such as the police.

• Triviality – The statement made does no harm to the person involved.

In the instance of former Deputy Prime Minister Joyce, it is unlikely that he will be able to bring a successful claim of defamation. The evidence and the facts are clear and true as reported. Barnaby Joyce did, in fact, have a sexual relationship with one of his staff members. The relationship persisted over time and is currently ongoing. As such, any statements made by the press revealing such information, were true and accurate. While it is a very unfortunate and painful happening for all involved, there does not appear that the reporting of the story is defamatory in nature.

About Rolf Howard
Rolf is Managing Partner of Owen Hodge Lawyers. He has been in the legal practice since 1986 and a partner of Owen Hodge Lawyers since 1992. Rolf focuses on assisting clients to proactively manage legal responsibilities and opportunities to achieve competitive advantage. Rolf concentrates on business planning and formation, directors’ duties, corporate governance, fund raising and business succession. His major interest is to assist business owners and their financial advisers plan and implement strategies to build and exit from successful businesses.