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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Thank You once again, @Atlas_LegalAU 🙂

 



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12 Responses to “On recording telephone conversations and defamation: Atlas_LegalAU advice”

  1. 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 the event….). Thanks.

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    workcovervictim March 4, 2012 at 7:41 pm
  2. 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 🙂

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    • 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 🙂

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      • 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 villains they really are.
        Just my 2 cents worth.

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  3. 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 them; whether that be reputation or otherwise. (Is this correct legal?). Without knowing who has read/what the consequences are of that – how would they be able to sue?

    Its complex, but typically my advice from my own lawyer has been that “defamation suits are prohibitive and unlikely to be bought against you unless by a corporation/someone famous”, and then, only if the loss is significant and easy to show.

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  4. 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 Australian Capital Territory do not have jury trials, whereas the others do.  In addition, the law in Tasmania does not include the provision in the Acts of the other States and the Australian Capital Territory that there is no right of action for a deceased person.

    The law is a combination of the common law and the codified systems that have existed.  It is intended that the new law will be reviewed upon a regular basis.

    The new law applies to matters published after 1 January 2006 save that if the cause of action comprises the publication of the same or substantially the same matter on separate occasions and one or more of the other causes of action in the proceedings accrued before the commencement of the new law, then the law prevailing prior to the introduction of the new law may apply, subject to less than 12 months having elapsed since the date on which the earliest cause of action accrued.

    The new law seeks to retain all Common Law defences that have existed.

    As a general proposition, it is considered that the new law benefits publishers, rather than plaintiffs.

    Prior to the introduction of the new law, each State and Territory had its own defamation laws.  Whilst there were similarities, inevitably substantial similarities, between the laws, there were also differences.

    Those differences created an anomaly because, for example, in the case of a national publication, an article could be defamatory in one State or Territory but not in another.

    The new uniform laws were introduced under “threat” from the Federal Government – if the States and Territories did not pass uniform laws, then the Federal Government indicated that it would do so.

    In this paper, I will identify some of the provisions of the new uniform law, and I will talk to you about the more significant of those provisions, particularly the provisions relating to:

    • The making of an offer of amends, and apologies;
    • The role of Juries and Judicial Officers; and
    • Available defences.

    Before I address those more significant provisions, I will highlight some of the other changes introduced by the new uniform law:

    • The distinction between slander and libel has been abolished (Section 7).
    • Importantly for New South Wales, Queensland and Tasmania but not so for Victoria, Western Australia and South Australia, the new law now provides for a single cause of action in respect of the matter complained of (Section 8).  Previously in New South Wales, Queensland and Tasmania, the Court had to make a finding for each individual imputation.  Now, in short, the Jury simply has to decide if the offending matter was defamatory.

    It is anticipated that, with the introduction of this law, there will be fewer interlocutory applications in which the parties argue over which pleaded imputations are capable of arising, and which are not.

    • There is a limited right of corporations to sue – they must either be not for profit or employ less than 10 persons (Section 9).

    This provision contrasts with the Common Law and by which a trading corporation was generally able to pursue a claim for defamation provided that the corporation could demonstrate that the defamatory material had injured or was likely to injure its reputation or had otherwise caused loss to the corporation.

    Interestingly, the Commonwealth wanted to preserve the right of corporation to be able to sue, but the States were not in favour of that.

    • Where publication occurs in more than one State or Territory, the proceedings should properly be brought in the State or Territory in which the harm has its closest connection (Section 11).

    Section 11(3) identifies factors that should be taken into account by a Court in determining in which State or Territory any harm has its closest connection.  Those factors include:

    v    The place where the plaintiff was ordinarily residence at the time of publication;

    v    The extent of publication in each relevant Australian jurisdictional area;

    v    The extent of harm sustained by the plaintiff in each relevant Australian jurisdictional area; and

    v    Any other matter that the Court considers relevant.

    • A party may elect for the proceedings to be tried by a Jury (Section 21).  If no election is made, the trial will be before a Judge.  See below – Role of Juries and Judicial Officers.
    • There is a limit on general damages, unless the Court otherwise orders, of $250,000 (Section 35).

    It is likely that the limit of $250,000 will be exceeded if the circumstances of the publication, including the conduct of the defendant in publishing the matter, justify it.  However, it will be interesting to see what findings the Courts make to justify such an award.

    A plaintiff is also entitled to claim special damages for economic loss.

    • Exemplary or punitive damages may not be awarded (Section 37).
    • A Court must generally order indemnity costs if a defendant unreasonably failed to make a settlement offer or unreasonably failed to agree to a settlement offer proposed by a plaintiff (Section 40).

    Likewise, a plaintiff who unreasonably failed to accept a settlement offer and whose proceedings were unsuccessful will generally be ordered to pay a defendant’s costs upon an indemnity basis.

    • If there is a statement on a document that it is printed, produced, published or distributed by or for a particular person, that statement is evidence of such printing, production, publication or distribution.

    Turning now to some of the more significant provisions:

    An offer to make amends and apologies

    The relevant provisions are contained in Sections 12 – 19.

    The purpose of the provisions is to encourage a resolution of defamation claims without recourse to litigation.

    A summary of the provisions is as follows:

    • An aggrieved person can serve upon the publisher of defamatory material a “concerns notice”.
    • The “concerns notice” should be in writing and should identify the imputations alleged to arise.  If the publisher is of the view that the “concerns notice” does not adequately particularise the imputations, the publisher is entitled to serve a written notice (“a further particulars notice”) requesting further particulars of the alleged imputations.
    • The aggrieved person should provide the further particulars within 14 days after being given the notice.  If the aggrieved person does not do so, then he or she is taken not to have served a “concerns notice”.
    • Following service of a “concerns notice”, the publisher of the defamatory material can make an offer to make amends.  Section 14(1) imposes time limits for the making of an offer to make amends.
    • The offer to make amends must:

    (a)        be in writing;

    (b)        be readily identifiable as an offer to makes amends under the Act;

    (c)        if the offer is limited to any particular defamatory imputation, it must state that the offer is so limited and particularise the imputations to which the offer is limited;

    (d)        include an offer to publish a reasonable correction of the matter in question;

    (e)        include an offer to pay the expenses reasonably incurred by the aggrieved person including expenses reasonably incurred by the aggrieved person in considering the offer; and

    (f)        may including any other kind of offer the redress the harm sustained by the aggrieved person including but not limited to:

    (i)         an offer to publish an apology; or

    (ii)        an offer to pay compensation for any economic or non-economic loss; or

    (iii)       the particulars of any correction or apology made, or action taken, before the date of the offer.

    An offer to pay compensation may comprise or include any one or more of the following:

    (a)        An offer to pay a stated amount;

    (b)        An offer to pay an amount to be agreed between the publisher and the aggrieved person;

    (c)        An offer to pay an amount determined by an Arbitrator; and

    (d)       An offer to pay an amount determined by a Court.

    The benefit to a publisher in making an offer to make amends is that, if it is not accepted, the making of it will afford a defence to the action for defamation provided that the Court holds that the offer was, in all the circumstances, reasonable.

    Whether the offer was reasonable in all the circumstances will have regard to the “usual” range of matters, including the factors that the Court firstly must and secondly may have regard to, as provided for in Section 18(2).

    Role of Juries and Judicial Officers

    A plaintiff or a defendant may elect for the proceedings to be tried by a Jury unless the Court otherwise orders.

    Generally, the Court may otherwise order where the trial involves a prolonged examination of records or other issues that cannot be conveniently considered and resolved by a Jury.

    The Jury however has a limited role.  The Jury is responsible for determining whether or not the defendant published defamatory matter about the plaintiff and also whether or not any defence raised by the defendant has been established.

    However, it is the Judicial Officer who will determine the amount of damages to be awarded.

     

    The Jury is responsible for delivering a single verdict in relation to all causes of action rather than, as happened previously (certainly in New South Wales), delivering a verdict in respect of each alleged imputation.

    Defences

    Many of the defences substantially reflect defences previously available although there are differences.

    The principal defences available are as follows:

    • That the imputations are substantially true.

    That defence also exists where there are other imputations (the contextual imputations) that are true even if the specific imputation complained of is not substantially true.

    Previously, for a publisher to succeed with a defence of truth, it was also necessary to demonstrate that there was a public interest or public benefit in so publishing.  That requirement has been removed by the new law.

    • That the defamatory matter was published on an occasion of absolute privilege.

    Such occasions include publication in the course of the proceedings of a Parliamentary body, a Court and other statutory bodies.

    • That the matter complained of was no more than a fair report of “proceedings of public concern”.

    “Proceedings of public concern” are defined in Section 29(4).  They include a range of bodies, organisations, Courts, enquiries, associations, meetings and the like.

    • That a defence of qualified privilege applies to the publication.

     

     

    That defence generally applies where:

    v    The recipient has an interest in having information on the subject;

    v    The matter is published to the recipient in the course of giving to the recipient information on that subject; and

    v    The conduct of the defendant in the publication is reasonable in all the circumstances.

    A recipient has an apparent interest in having information on some subject if, and only if, at the time of publication, the defendant believes on reasonable grounds that the recipient has that interest.

    In determining whether the conduct of the defendant in publishing the matter is reasonable in all the circumstances, the Court may take into account:

    v    The extent to which the matter published is of public interest;

    v    The extent of which the matter published relates to the performance of the public functions or activities of the person;

    v    The seriousness of any defamatory imputation carried by the matter published;

    v    The extent to which the matter published distinguishes between suspicions, allegations and proven facts;

    v    Whether it was in the public interest for the matter published to be published expeditiously;

    v    The nature of the business environment in which the defendant operates;

    v    The sources of the information and the integrity of those sources;

     

     

    v    Whether the matter contained the substance of the aggrieved person’s side of the story and, if not, whether a reasonable attempt was made by the publisher to obtain and publish a response from the aggrieved person;

    v    Any other steps taken to verify the information; and

    v    Any other circumstances that the Court considers relevant.

    • That the matter was an honest opinion, and which will apply if the defendant proves that:

    v    The matter was an expression of opinion of the defendant, rather than a statement of fact;

    v    The opinion related to a matter of public interest; and

    v    The opinion is based on proper material.

    Such a defence can be defeated if it can be established that the opinion was not honestly held by the defendant.

    • There is a defence of innocent dissemination if the defendant proves that:

    v    The defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor (which is defined by Section 32(2));

    v    The defendant neither knew, nor ought reasonably have known, that the matter was defamatory; and

    v    The defendant’s lack of knowledge was not due to any negligence on the part of the defendant.

    • That the matter complained of was trivial, in that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.

     

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  5. 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 is concerned.

    If, notwithstanding the above technical arguments, the Court were to find that the place in which a web-page is downloaded and displayed in a web-browser is a place of publication, then very serious practical difficulties arise for Internet publishers. The myriad of individuals who are now web-publishers could not comply with the varying defamation laws throughout the world.

    Highly significant public policy implications arise. It would be to the serious detriment of freedom of access to information if Internet publishers had to be mindful of every defamation law in the world.

    Check out this great site >>

     

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  6. 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 you have legal representation, then ALL of your communications should go through that Legal Representative.  That is you need to direct the Insurer and Employer that you wish for all communications to go through your legal Rep.

    Having said that Insurers in particular will try and push the envelope, here is a copy of a fax sent to an insurer about this issue;- Details have been removed to protect the innocent.

    ____________________________________________________

    Dear Madam:

    I write to you in relation to your recent conversation with my wife over the last couple of days but most particularly today’s date at approximately 2.10pm.

    You may or may not be aware of my wife’s medical condition and prior direction to the former Insurers GIO.  Therefore, I will stipulate and remind you of those at this time yet again.  My wife suffers from a serious psychological injury; your continual communications with her only aggravate the situation.

    GIO was and now we remind and direct GALLAGHER BASSETT that ALL communications are to go through my wife’s Legal Representatives.

    (Legal Reps details)

    From this date forth, my wife directs Gallagher Bassett not to communicate with her directly in any way shape or form, no telephone calls, no letters, no emails, not even messenger pigeons NONE WHATSOEVER.

    You have been put on notice and failing which my wife will have no other alternative but to apply for an Intervention Order against any personnel from Gallagher Bassett that tries to contact her.  She is NOT WELL.

    Signed

    _______________________________________________________

    Insurance companies are only profit making entities and they do not care whatsoever. Do not allow yourselves to be treated disrespectfully and against your wishes.

     

     

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    • 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 suffering life treathening complications from a 9th or 10th major [limb] reconstruction, that I do not need to see a psychiatrist (to whom I just had been referred by a doctor) “because I could talk to her”! On an other occasion, for example, I was told in writing by Xchanging that “although I had made several references to a deterioration in my physical condition (as well as my surgeon- the entire last surgical reconstruction broke down!!!) they were NOT interested in my physical condition but I need to see an independent psychiatrist to assess as whether I am able to engage in rehab with a view to return to work ASAP” (!!!!)… Just 2 examples, but I could provide you many more insane examples.

      However, after having sent the letter (similar as your sample letter), followed by numerous repeats via email, the case manager repeatedly breached the demand. Eventually my lawyer sent a letter of a similar content and referring to “civil rights” I think it was and threatening with a final restraining order, she still continued to breach the demand. In fact she carried on and an and on and I had no option put to switch on the answer phone upon medical advice. In the end, to keep this horrid story short, it took for the case manager to really stuff up – she accidentally sent me a very shocking, defamatory, and most improper email (that was supposed to go to someone else internally) to have enough HARD evidence of her misconduct to have her immediately replaced. It took my lawyer under 24 hours to have her removed.

      It just shows to what length those people go and how tenacious they are in their pursuit to demolish injured workers in the hope that they “go away” and/or “give up”.

      My advice would be to ensure you do it sooner rather than later and if you do have a lawyer, use them to your advantage.

      PS: I hope you don’t mind @Atlas_Legal, we’re going to post your sample letter (with your credentials) under our workcover tips for ease of location. Thanks again.

      Please say thank you to @Atlas_Legal for the great information, perhaps follow @Atlas_Legal on Twitter! 😉

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      workcovervictim March 15, 2012 at 4:48 pm