Defamation in Strata – What is it?

In the middle of a long and expensive piece of litigation I brought on behalf of a stakeholder in a strata scheme who claimed someone on the committee had defamed him, I again asked my client the question that any responsible lawyer would repeatedly raise: “Do you really think the juice is worth the squeeze on this one?”

The costs of the litigation had already exceeded any realistic estimate of the likely compensation he could be awarded for the hurtful comments made against him. So was the litigation worth the investment?

He replied: “Yes, because he plays the man, not the ball.” That simple statement explains why people get sued for defamation, and why someone may feel compelled to commit to significant costs to make a claim against them.

What is defamation?

Defamation is the publication of something which tends to lower a person’s reputation in their community. The ‘publication’ can be spoken or written. Whether the publication was defamatory will depend on what an ordinary person would reasonably understand the words to mean; not necessarily the meaning a person sensitive to criticism finds in them.

In other words, defamation does not provide a remedy for those offended by what has been said about them, but a remedy for damage caused to their reputation.

So you can’t say anything negative about someone else?

You can, so long as you have a good defence. Some examples of common defences that arise are:

• What was said was substantially true.It may damage someone’s reputation to say that they have scant regard for the by-laws. However, that person may find it difficult to sue in defamation for that comment if they are justifiably receiving by-law contravention notices every other day
• What was said was trivial and unlikely to harm the person’s reputation.When holding a heated discussion in a committee meeting, committee member A tells committee member B that he is being “a clown” over his stance on whether unit 7 should be given approval to keep a pet cat
• You (usually a body corporate manager) innocently disseminated the defamatory matter, with no capacity to edit it or knowledge that it was defamatory.

A lot owner submits a motion proposing that the body corporate fund the construction of a 12 foot brick wall around townhouse 7, and the explanatory note explains why the residents of that townhouse ought to be caged in. The body corporate is required to circulate that motion and explanatory note by legislation, and cannot change it in any way. A review of the explanatory note might reveal that it was defamatory, but this particular defence is supported by a protection set out in section 111A of the BCCM Act.

• You (usually a committee member) were giving information to someone else (usually a lot owner) on a subject they had an interest in, and it was reasonable in the circumstances for you to have published the matter (even if it were defamatory), and you did not do it out of malice.

The committee has genuine concerns about the performance of caretaking duties, obtains an expert report revealing the substandard condition the common property attributable to the poor performance of the caretaking duties, and expresses those concerns in minutes circulated to all lot owners.

There are many other defences, but these are the ones I usually see called upon in defamation cases arising out of a strata community.

Where the line usually gets drawn

The difference between success and failure in these types of defamation cases usually comes down to the motives of the defendant / publisher.

If their primary motivation is to properly inform other stakeholders in the community about a concern they have with what someone else has done, and that concern reasonably held and based on proper material, they usually stand themselves in good stead if a defamation claim is made.

People get themselves in trouble if their primary motivation is to damage the reputation of someone else, and they go out of their way to make their peers think less of someone else because of some ulterior motive. So instead of promoting their own qualities that make them suitable to hold the office of chairperson, they will instead tell others why the other candidate is a terrible person for the office. Mud sticks, right?

In the heat of the moment, they might say something they may not have thought through properly, but it felt good to say it at the time. That is when they stopped playing the ball, and started playing the man.

A word of warning for committee members

You should be especially cautious if you feel that hot flush and the need to immediately respond to something you have just heard or read. Most residential strata insurance policies provide cover for office bearers’ liability (if a committee member gets sued for something that happened while they held that office), but a typical exclusion is a defamation claim.

That does not mean a committee member will be denied cover for any defamation claim made against them. Most insurers will assess the claim being made and provisionally confirm indemnity for the defence costs if it has low prospects of succeeding. But you should always err on the side of caution when you feel that hot flush, such as by sleeping on the response you intend to send and running it past others who do not have a vested interest in the argument (such as a lawyer).

This information is intended to provide a general summary only and should not be relied on as a substitute for legal advice.

This article was submitted by Jason Carlson, Partner – Grace Lawyers.