On Point - Issue #6

Defamation and Industrial Action

1. During a period of industrial action things can get heated. This includes parties making public statements. Social media has made public statements more accessible. There is also a growing nexus between reputational damage and commercial consequences.
2. The protected industrial action provisions of the Fair Work Act 2009 (Cth) do not provide an immunity against an action in defamation. Individuals who have been defamed may take an action in defamation.
3. Trade unions may also take an action in defamation. However, corporations (employers) with more than ten (10) employees cannot. These employers have been specifically excluded by State and Territory defamation law. They can only seek relief through other causes of action.
4. Another cause of action is the tort of injurious falsehood. Proving injurious falsehood can be more difficult than defamation. Despite this, it is easier to obtain injunctive relief (stopping publication) for injurious falsehood than it is for defamation. A successful injunction may also be more comprehensive.
5. Injurious falsehood cannot be used to subvert the injunctive relief restrictions in defamation. However, this is unlikely to apply to employers with more than 10 employees as they are excluded from taking an action in defamation.