@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.
Thank You once again, @Atlas_LegalAU 🙂
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