Responding to the financial abuse of older people - Loddon ...

9. Defamation
The purpose of this section is to address whether an action for defamation could be
brought against a financial institution which makes an allegation of abuse against a
person to a third party, including any defences available to the financial institution.
9.1 Background
The law of defamation is now uniform throughout Australia. Uniform defamation
legislation came into operation on 1 January 2006 in all States. The legislation provides
a remedy for injury to reputation caused by defamatory publication. This remedy
previously existed in the slightly differing laws in all Australian jurisdictions which
provided a remedy in damages for the publication of a disparaging statement about
a plaintiff, that is, a statement likely to cause the ordinary, reasonable member of the
community to think less of the plaintiff.
Some would argue that a law protecting reputation is outdated and should have no
application to our modern way of life and communication. However, most people are
affected by defamation at some stage in their lives. A good reputation can be damaged
forever, depriving a person of relationships and opportunities. While freedom of speech
is a fundamental human right, it is not absolute and must be balanced with other
fundamental human rights such as protection from unjustified attack on reputation.
This is an important issue for a bank, which must balance the need to report abuse
against the possibility of damaging a person’s reputation forever. In doing so, a bank is
exposed to a suit of defamation.
Should a bank be exposed to an action for defamation, there are a number of defences
available to it. Before addressing those, however, we set out below the basic elements
giving rise to a cause of action in defamation.
9.2 Common law test
The common law remains the necessary starting point in any discussion of the law
of defamation because the legislation is largely premised on existing common law
principles.
The cause of action for defamation is constituted by communicating something which
is understood to be defamatory of a person, to someone other than that person. The act
of communication of the defamatory meaning is known as ‘publication’. The word has a
technical meaning and is not limited to newspaper and periodical publications. A work
of art, a wink or a nod may constitute publication.
40