Defamation in Music: A Q&A with Marque Lawyers

Content Warning: This article covers sexual harassment incidents. If you or someone you know are affected by the following story, you are not alone. To speak to someone, you can call Lifeline on 13 11 14, or 1800 RESPECT on 1800 737 732.

When Beneath The Glass Ceiling launched in August last year, it arrived at a time when the loudest industry whispers seemed to offer a resounding ‘Where is the Australian music industry’s #MeToo movement?!’

Now, the page is offering more than a voice to those who have been silenced by the injustices that exist within the music industry.

Following a call out for questions for an Australian defamation law expert, Beneath The Glass Ceiling has published the answers to those questions.

Enlisting Marque Lawyers—who are currently representing Jo Dyer against Christian Porter—the firm has offered followers of BTGC clarity on Australia’s defamation laws.

In the Q&A below, Marque Lawyers outlines information regarding NDAs (non-disclosure agreements), posting experiences on social media, how the laws play a part in what media can and cannot report on, and more.

General defamation

Can an NDA prevent a person from reporting a criminal offence?
No. An NDA that says this will be unenforceable.

Is it true that asking someone to sign an NDA to prevent a person from reporting a criminal offence may itself be a criminal offence?
In some circumstances it could be.

What are some things to consider before signing an NDA?
Understand exactly what it will prevent you from doing, and how that aligns with what you might want to do later.

What is the difference between Non Disparagement and a Non Disclosure Agreement?
Non-disparagement means you can’t publicly say anything negative about the other party. Non-disclosure means you can’t publicly talk about the things that the agreement stipulates (for example the incident, the perpetrator or the settlement itself).

Am I legally allowed to tell my story online using names and business names?
There’s no law outright prohibiting that, or allowing it. You have to consider two main legal risks: defamation; and any personal contractual obligations you have, for example in your employment agreement or an NDA.

How much are you allowed to say without something falling under the legal basis of defamation?
Anything you say or write which is likely to cause damage to a person’s reputation is defamatory, and may make you liable for defamation. It’s an extremely complex area of law, but that’s the basic principle to keep in mind.

What’s the difference between slander and defamation?
In the old days, slander referred to spoken words and libel to written words. Defamation is the modern term, which includes both slander and libel.

If I am not Australian and I say something in the U.S. am I subject to Australian defamation laws?
You can be sued for defamation in any place where the defamatory material is published. It doesn’t matter where you are or where you’re from. Importantly, online defamation is published and can be sued on pretty much anywhere, because the internet is everywhere.

Is a defamation case fought in front of a jury or can it be anonymous?
Whether the case is in front of a jury or just a judge depends on which court the plaintiff chooses to go to. In Australia currently, most plaintiffs are choosing the Federal Court, which almost always does not use a jury.

Sexual assault and defamation

I want to come forward about my assault but I’m scared about defamation, what can I do?
If you report the assault to the police, you can’t be sued for defamation over that. If you disclose the assault, and name the perpetrator, publicly, then you are at risk of being sued for defamation. Truth is a complete defence in that case, but you should get expert legal advice before you decide to go public.

If you have been sexually assaulted or harassed in your place of work, what are my legal rights?
Sexual harassment and sexual assault are treated differently by the law, with different consequences. In either case you will have legal rights against the perpetrator and your employer, including claims for damages. It’s complex, so you should get advice before taking any action.

Is there a statute of limitations on sexual assault?
Yes, except in the case of child sexual assault, for which there is no limitation period. The rules differ between civil and criminal cases, and between states and territories.

What is the worst thing that can happen by breaking an NDA related to sexual harassment?
You can be sued, usually they’ll seek an injunction to stop you from saying any more, but they can also seek damages. Really the worst thing is getting caught up in messy and expensive court proceedings.

What is the legal age of consent in NSW and does the age difference matter?
The age of consent is 16. There is a “similar age” defence in NSW where both participants are over 14 and the age gap between them is no more than 2 years.

Can lawyers acting on behalf of perpetrators legally access emails or comments about them?
Generally speaking, the court process (in civil or criminal cases) will allow access to be obtained to any relevant material including communications between the victim and others.

Defamation & the media

If I have a blog, how can I write about an abusers actions or victims stories without the risk of defamation?
Any publication of a story of sexual violence will be defamatory of the perpetrator, if they are named or can be identified from the story. The only viable defence, if they sue, is to prove that the allegation is true. You have to be okay with the risk of being sued, and prepared to prove the allegation in court.

Must a journalist talk to both sides if they have evidence that one side is truthful?
Generally it’s appropriate to try to get both sides before publishing, but there’s no strict legal requirement to do so.

Publication has multiple on record accounts re: abuser, but won’t publish the story. Why?
Fear of being sued. There’s no way publishers can run these stories with no risk of being sued and losing, under the current defamation law.

Does using “allegedly” completely protect you from a defamation lawsuit?
No. It may protect you, depending on the context.

If I just hint at the person’s name but don’t use his real name am I liable for defamation?
A person can sue for defamation if they are either named or identifiable, so it depends on how unsubtle your hints are.

If I repost another person’s allegations am I also liable for defamation?
Yes.

Basic rights

My abuser’s mother targets me and lies on Facebook since I went public, what can I do?
You can potentially seek an AVO; it may also constitute an offence under Commonwealth law.

If my ex falsely called me a domestic abuser on social media, do I have recourse?
You can potentially pursue defamation action.

Am I allowed to repeat gossip about a celebrity or is that considered defamation?
Celebrities have the same right to not be defamed as everyone else.

Can you post the name of your assault with *in my opinion* and not get sued?
Expressing it in that way won’t reduce your legal risk.

Marque Lawyers is a certified B Corp, which means the business is led by a purpose other than profit. Read more about that here: www.bcorporation.com.au

This article originally appeared on The Industry Observer, which is now part of The Music Network.