Named, shamed, defamed – how not to be sued

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“Defamation is for rich people,” read a comment I recently saw on a website.  It may be true, but then, in strata, the threat of legal action is brandished as readily as a broadsword on Game of Thrones, by rich and poor alike.

When it comes to accusing people, and hoping they don’t challenge us to prove our allegations, politicians get to hide behind parliamentary privilege.

The “qualified privilege” enjoyed by strata committees is much less watertight and allegations of the crimes and misdemeanours of our neighbours are potentially just as damaging to their reputations among their peers.

Having observed a couple of strata defamation cases, I can say that, regardless of the outcome, the emotional and financial damage to both parties can be devastating.

So what is defamation? Defamation law is different in every state and territory (despite ongoing efforts to standardise them). Add that to the Mixmaster of different strata laws and it would be unwise to speak in anything other than broad generalities.

However, the Victorian Law Handbook is as good a starting point as any, and it defines defamation thus: “A person whose reputation has been attacked can sue for defamation if damaging material that identifies them was published.”

Two key words in there are “identifies” and “published”. You don’t have to name people to identify them – just provide enough information so that enough people know who you’re talking about.

As for “published”, a comment in minutes, on a notice board or in social media certainly qualifies.

Does that mean you can’t ever criticise anyone for anything? No, because generally speaking, in strata the owners corporation’s (body corporate’s) responsibility to keep owners informed over-rides individuals’ rights to privacy or unbesmirched character.

And, there are defences such as truth, qualified privilege or fair comment.

The “naming and shaming” of owners who are behind in their levies is generally accepted because it’s covered by the other owners being entitled to know why their funds are a bit short.

However, making that information available to the general public or using as a basis for claims about an owner’s honesty or financial status is a very different matter.

Informing owners, via the minutes, that the residents of a specific flat have been issued with a breach notice regarding the noise from their unit is arguably an important part of the enforcement procedure.

But this “qualified privilege” evaporates when allegations are untruthful or malicious.  If you say the noisy resident was handing out party drugs, you’d better have video footage or witnesses to back this up.

If a resident has had a long-running feud with the committee, describing them as a “known troublemaker” could be interpreted as malicious.

Criticism is not necessarily defamatory.  Saying a neighbour’s brightly coloured blinds are unsightly probably comes under “fair comment”.  Saying the neighbour has no taste or concern for their neighbours probably isn’t.

Threats of defamation claims are over-used in strata and they’re issued much more often that they are pursued.  So tone down the vitriol but don’t be too frightened to speak out.

Many strata insurance firms specifically exclude defence against defamation action from their policies – not because they are prevalent, but because they can be eye-wateringly expensive when they do occur.

By the way, committee members “naming and blaming” owners with whom they disagree, often with the effect, unintended or otherwise, of discouraging discussion or dissent, is a whole other issue.

Fortunately, it has a very simple and inexpensive solution: vote them out the first chance you get.

A version of this column first appeared in the Australian Financial Review.

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