On recording telephone conversations and defamation: Atlas_LegalAU advice

phonerecording

@Atlas_LegalAU has been EXTREMELY kind to provide us with FREE advice about recording (telephone) conversations and about our defamation matter. We are very grateful for this EXTREMELY useful information and forever indebted. To all our readers, please consider following @Atlas_LegalAU as a token of your appreciation for the information provided.

@WCVictimsdiary Firstly I apologise for the delayed reply, before I commence my brief comment, I just wish to place a correction on that post you state,

“As Legal Atlas recently posted ….you must seek authorisation to record telephone conversation.”

I presume you meant Atlas Legal (which is not an important typo mistake), what is important is the authorisation statement. I tried to make it clear in our original post that you do NOT require the otherside’s authorisation, what you do require is their KNOWLEDGE that a recording is being made.

So long as you tell them that you intend on recording a conversation and it is in clear terms then you are covered. If they choose not to have a conversation with you AFTER you have told them you intend on recording the conversation that is their prerogative. If they say, “I don’t want it recorded” and you reply, “Well that’s too bad I am still going to record any conversation we have,” and they continue talking with you and you record the conversation you are covered.

Now in relation to your question,

“…on the publishing of names and whether it would be best a) not to or b) publish them under restricted pages, accessible only via registration?”

The shortest and safest answer of course is A.

That is not to publish names or anything identifying the individual subject to adverse comments. If the individual can be identified without being named and all the elements for a breach of the Defamation laws are complete you could still be liable.

 

Now having said that, make sure you read and understand what I have said before getting all terrified about the possibility of being sued for defamation.

The Law is no good with hypothetical circumstances or given fact situations it is difficult to advise on such a complex area of the law without concrete facts and circumstances. There are many articles on defamation laws in Australia on various websites. The problem or complexity of your question is primarily this.

Which Jurisdiction will be used? The area of the law dealing with Internet defamation is still very much in its infancy. There are a few cases on Defamation relating to the publishing of articles on the internet but by no means is the law settled in that area. Questions such as Where has the defamation occurred ? Where the person typed out the offending comments? , were they where read by the alleged victim? Were they where read by the majority of people reading the article? how many people actually read the article ? etc etc.

In short an offending post on your site MAY possibly be prosecuted in any State or Territory in Australia and in fact overseas. There are many factors to investigate and confirm before court proceedings could be commenced. Each jurisdiction in Australia has to some degree varying elements to the laws of defamation. Different Rules of the Court where the action may be commenced etc etc.

So in short, it is difficult to comment on whether you may or may not be liable without a clear-cut factual basis. However, it has been said, that the laws of defamation are there to protect the reputation of the rich.

You mention in your post the following, “A law student has also told us that defamation can only be established when it can be proven that a person is suffering financial loss from the ‘defamation’” That is NOT correct.

Defamation laws in general terms tries to remedy hurt or injury caused to an individual’s reputation. It does not mean that particular individual has to prove s/he suffered “financial loss” in order to be successful. Loss and Damage can be assessed in terms of how much damage was done to a person’s reputation.

Now in order to commence, run and complete a prosecution for defamation an individual must undertake a costs benefit analysis. That is, if I sue and I am successful how much am I likely to get for my troubles. In the VAST majority of cases, and dare I say the vast majority of Case Managers working for WorkSafe or WorkCover it would NOT be economically feasible.

The reason being even after a successful prosecution, the legal fees that person would pay would outweigh in most circumstances the restitution that they would be awarded even taking into account the Defendant paying for the plaintiff’s party – party costs.

In simple terms even after the defamer or loser pays for the defamed persons legal costs, which would be around APPROX somewhere between 50 – 70%. In other words it is very expensive to run a defamation case if you are a Joe or Joanne Nobody from suburbia working for WorkSafe or WorkCover.

What sort of reputation would they have ? I don’t mean to sound factious or insulting just trying to put the law in simple terms. That’s why it has been said that Defamation Laws are there to protect the reputation of the rich and I might add “famous.”

Now when it comes to naming and shaming you could well get the details of the person REPORTING the matter to you, make sure those details are CORRECT and verified. Contact them by phone or other means establishing their names and contact details like address etc. So if AFTER you have posted what that person has told you, you can contact that person to come to court for you in your defence for any Defamation action.

I am not suggesting you NEED to post the reporting / Injured Workers details, just that you have them in a secure location so if called upon you can get them to court for the information they gave you. Now to add an extra layer of cover, you could also contact the Defamed person BEFORE YOU DEFAME them by posting and explain to them the information you have received, that you will be posting defamatory material, and if they wished to comment on the information or make a statement.

Now yet again, I clearly state the above is NOT legal advice but a comment, which you have asked for me to make. If you have any issues with a given fact, situation you will need to contact a competent Legal Advisor and get proper legal advice. If you have any detailed or specific questions perhaps, you email me.

Cheers

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Atlas Legal
Guest
We just wanted to highlight an issue perhaps not relevant to this thread about Defamation but nevertheless an issue which in our opinion is very important.  The issue of injured workers being treated with disdain and contempt by Insurers as well as Insurance Medical Practitioners. You have every right to record or have your dealings recorded with the Insurers or any of their agents.  Once you make them aware of your intention to record the dealings.  I realise that topic has already been covered in another area, however, IF insurers and their agents do not consent to being recorded and… Read more »
workcovervictim
Guest
Thank you so much @Atlas_legal for this valuable piece of information and demo letter injured workers can use/adapt. I have in the past written a similar letter to my case manager at Xchanging and then to her supervisor, backed up with several medical letter/reports from my treating psych backing up the fact that ANY discussions with the case manager (which have been wll documented) have only aggravated my psychological injury(ies) such as depression and PTSD. For example, I would receive harassing phone calls and or emails from said case manager, whilst severely depressed after having been unlawfully sacked and after… Read more »
also
Guest
The Internet in general, and the Web in particular, are communication technologies that differ in very significant ways from the technologies that preceded them. If the place of publication of a web-page is determined by reference to prior technologies, then the nearest (but far from perfect) analogy is with inter-library lending. If the place of publication is determined by reference to the positive acts of the publisher, then the place in which a web-page happens to be downloaded and displayed in a web-browser is not a place of publication because that downloading is not active so far as the publisher… Read more »
Law resources
Guest
A PRACTICAL GUIDE TO THE NEW UNIFORM DEFAMATION LAW This paper addresses the new uniform defamation law that was generally introduced effective as from 1 January 2006.  On that date, the law came into effect in New South Wales, Victoria, Queensland, Western Australia, South Australia and Tasmania. The law came into effect in the Australian Capital Territory as from 23 February 2006 and it is hoped and expected that the law will become effective in the Northern Territory in the near future. Whilst the uniform law is substantially the same, there are some differences.  For example, South Australia and the… Read more »
s
Guest

Thank you VERY MUCH!

S
Guest
Great advice from Atlas. In trying to simplify my (very briefly educated) opinion on the defamation issue, I think i made some errors.  From my understanding; You have to prove loss – in order to sue for defamation. Whether that be a loss in reputation etc etc and typically speaking, in order to sue you need to establish what the financial cost of that loss is.  (is this wrong?). Establishing this is very difficult – particularly in the case of writing things online about somebody – they would need to show how your words directly resulted in a loss for… Read more »
Atlas Legal
Guest

We don’t want to get too hung up about Defamation it is costly and prohibitive to pursue.  Here is a great link that explains how damages are assessed in NSW (ONLY NSW remember each State may well be different)

http://www.lawlink.nsw.gov.au/lrc.nsf/pages/R75CHP2

There is also another link which gives a general outline to the Uniform defamation laws in Australia read carefully

http://www.australian-defamation-lawyers.com.au/  click onto the word document link named “Uniform Defamation Law”

thank you
Guest

Thank you to @Atlas_LegalAu for a great reply indeed. The defamation issue is indeed a complex one. I would personally encourage you to keep naming those shameful individuals, however, as @Atlas_legalAU states, ask the namers to provide the evidence and/or their contact details in case… That way you are playing it 100% safe. The last thing you need is to have a deep pocketed workcover insurance company in your neck, you surely have enough on your plate as it is 🙂

Ha!
Guest

They’ll huff and they’ll puff but in the end what are they going to do?

I guess it depends on how much you have in assets. If you have a lot in assets and a lot to lose (if they sue) then I’d maybe be a little bit worried.

If you have no assets then they can’t take from you what you don’t have!

You can’t go to jail for defamation 🙂

Any legal action will simply increase media attention to the insurer, their dodgy employee/s and they’ll be publicly shamed even more if they had done nothing.

See http://en.wikipedia.org/wiki/Streisand_effect 🙂

sure
Guest
They’ll most likely try and provoke any of us injured workers to say (write) something defamatory – just like that workcover employee did with his/her sick comments the other day. We shouldn’t put ourselves at their LOW level – we’re better than that, we’re humans, not animals, we have hearts and souls unlike them. They’d love nothing more for one of us to “defame” [what is there to defame p-l-e-a-s-e] one of them so they can attack us, or the blog and try and destroy it. Raise above it, let them insult you instead and SHOW the world what utter… Read more »
yes
Guest

It is my understanding that some individuals were named in a publicly published court case anyway!

http://www.austlii.edu.au/au/cases/nsw/NSWWCCPD/2011/4.html

workcovervictim
Guest
Great advice, I think we MAY be able to sleep tonight. However, what I still don’t get is how websites such as http://www.ratemds.com/ and  not good enough – http://www.notgoodenough.org/viewtopic.php?p=323399- manage to get away with websites full with defamatory comments about (insurance) companies and even individuals (doctors). You can write whatever you like and they publish it (we have done so in the past). Those who have kindly named and shamed IMEs and CMs (and who have not been shamed in the media/parliament), could you please provide us (via quick contact) a brief summary of the allegations and your contact details (in… Read more »