Protecting Reputations in Sport: An Overview of Defamation Laws in Australia

In elite sports, reputation stands as a cornerstone of an athlete's career, influencing endorsements, fan support, and professional opportunities. Senior sporting administrators, constantly under public scrutiny, navigate a precarious path where their tenure in top positions remains perpetually at risk, which emphasises the importance for them to also maintain their reputation. This article seeks to provide a brief overview of Australia’s defamation framework and its application to the elite sporting sphere.

How is Defamation Regulated in Australia?

Australian defamation laws are regulated on a State and Territory level. Despite this, they are largely uniform across the country. In Queensland, the area is governed by the Defamation Act 2005 (Qld) (DA Act) and common law.

Elements of a Defamation Claim

For a person to be successful in a claim for defamation, the defaming party must have made a publication (which includes oral and written words as well as gestures):

1. to a third party;

2. of a defamatory matter;

3. that caused serious harm to the reputation of the person;

4. about, concerning or identifying the person; and

5. without a lawful excuse for doing so.

What Defences Apply?

A defamation claim will be unsuccessful where there was a ‘lawful excuse’ for the defamatory publication. This includes:

1. justification (section 25 of the DA Act);

2. contextual truth (section 26 of the DA Act);

3. absolute privilege (section 27 of the DA Act);

4. public document (section 28 of the DA Act);

5. fair report (section 29 of the DA Act);

6. qualified privilege (section 30 of the DA Act);

7. honest opinion (section 31 of the DA Act); and

8. innocent dissemination (section 32 of the DA Act).

Defamation Cases in Sport

Defamation law is informed by several key sporting cases. Two of these cases are Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443 (Ettingshausen Case) and Coates v Harbour Radio Pty Ltd [2002] NSWSC 359 (Coates Case).

Ettinghausen Case

The Ettinghausen Case involved Australian rugby league player, Andrew Ettingshausen, who was selected in the Australian team for the 1990 England tour. Following a test match against Great Britain, a photograph was taken of Ettingshausen and two other Australian players while they were showering. Australian Consolidated Press Ltd (ASC) later published the photograph in HQ magazine. The photograph depicted a shape between Ettingshausen’s legs that could be interpreted as his genitals. The shadowing and cropping of the image ensured that the two other Australian players did not suffer the same embarrassment. The table of contents in the HQ magazine read, ‘Hunks Gratuitous nudity, bad language and some fine pectorals…’. In response to this, Ettingshausen commenced a defamation action against ASC. He claimed that, by publishing the photograph, ASC had conveyed two defamatory imputations, namely that he:

1. had deliberately allowed a photograph to be taken of him with his genitals exposed for the purposes of it being reproduced in a publication with a widespread readership; and

2. was a person whose genitals have been exposed to the readers of HQ magazine, a publication with a widespread readership.

In determining whether the material published conveyed the first imputation, the presiding judge considered the ordinary reasonable reader test. This required the jury to decide whether the ordinary reasonable reader would be capable of determining that the published material conveyed the alleged imputations. In applying this test, the jury found that the published material conveyed the first imputation. As the second imputation was argued in the alternative, the jury did not consider it and Ettingshausen was awarded $100,000 in damages (originally $350,000 but reduced after a damages retrial for being manifestly excessive).

Coates Case

The Coates Case involved the case of two Australian radio hosts, Mr Alan Jones and Mr Andrew Moore, and their discussion of the women’s eights rowing final in the 2004 Athens Olympic Games. In the course of their conversation, the hosts talked about the actions of athlete Sally Robbins, who had abruptly ceased rowing in the middle of the race. They also discussed the press conference following the race, making a number of statements regarding the Australian Olympic Committee president, Mr John Coates including (among others):

1. There were ‘significant questions … over the leadership of the Australian Olympic movement’;

2. ‘they practiced a cover up from the moment something happened to Sally Robbins and the leadership of the Olympic movement, Coates and others, virtually were telling these people what to say.’;

3. ‘it really is time for John Coates to give the guernsey to someone else.’;

4. ‘it was the Olympic leadership that were at fault’; and

5. ‘the handling of the whole business was awful’.

In response to this, Mr Coates commenced defamation proceedings against Jones and Harbour Radio Pty Ltd. Mr Coates claimed Mr Jones’ discussions conveyed the following imputations:

1. he ordered a cover up in relation to Sally Robbins and lacked competence and leadership in dealing with the incident; and

2. he bullied other rowers into communicating what he wanted them to at the press conference.

In response to these imputations, the hosts argued the defences of justification and comment (made under the now-abolished Defamation Act 1974 (NSW)). The defence of justification required that the imputations be true. The imputations were found to be blatantly false and, in some respects, ‘could not survive even the most cursory examination of the press conference’. The defence of comment required that the published material be an expression of opinion and not fact (which is similar to the current defence in the DA Act of honest opinion). It was found that the hosts communicated the information as a matter of fact and not opinion. As both defences failed, Mr Coates was successful in his claim and was awarded $360,000 in damages.

Conclusion

The landscape of defamation law in Australia serves as a crucial guardian of reputations, offering protection to elite athletes and sporting administrators whose careers and overall success can often hinge on public perception. As the world of sports continues to evolve, a detailed understanding of defamation law remains indispensable in preserving the integrity and professionalism of those involved in this dynamic and high-stakes domain.