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Marketing law: How schools can respond to defamatory statements

Published on August 14, 2023 by Stephanie McLuckie and David Ford

This article was written by Stephanie McLuckie.

This article was originally published in the School Marketing Journal in Term 1, 2023. 

As lawyers, we are regularly asked by school leaders to consider statements made in the media or online to determine whether something said or posted by a disgruntled parent, student or past employee is defamatory.

Defamation law aims to balance the right to protect the reputation of individuals and some corporations (particularly small businesses and not-for-profit organisations including independent schools) with the public’s right to freedom of speech.

So how can you work out if a statement is defamatory and if a claim can be brought against the person who made it?

You should start by considering the following elements:

1. Has the statement been published? This means it has been shared to other people in some fashion (other than sent directly to the school itself).
2. Is the statement largely untrue or unsubstantiated? A disparaging statement that is actually true is not defamatory.
3. Can the school (or perhaps, the principal, a school teacher or school board member) be identified from the statement?
4. Has the statement damaged the reputation of the school, or is it likely to?
5. Will the damage to the school’s reputation cause financial loss by impacting enrolments, donations and bequests or government grants?

If the answer to all of these questions is ‘yes’, then the statement is defamatory, and a claim can be made.

ln Australia, everyone involved in publishing defamatory material may be liable for defamation. For example, in certain circumstances the owner or host of a website (such as Facebook or Google) may also be held liable for defamatory content appearing on their online platforms.

There are several defences that may be available to defeat an action for defamation. The most common defence is that the statement is truthful. Another defence is that the statement is an ‘honest opinion’, considered to be in the public interest and founded on substantially truthful material.

Once you have concluded that a statement is likely to be defamatory, you may consider:

• responding to the statement in a neutral manner to address a concern that has been raised publicly,
• privately contacting the person who made the comment to ask for it to be removed,
• contacting the online website host or media platform to ask for a post to be removed or for a retraction to be printed, and/or
• seeking legal advice from a defamation lawyer.

Sometimes, ignoring such comments will be the best way for these things to ‘blow over’. However, where comments are being made that are particularly damaging to the school’s reputation, you may want to issue a ‘concerns notice’.

A concerns notice is a formal notice to a publisher that their statement contains ‘defamatory imputations’. An imputation is defamatory if it causes ordinary and reasonable people to lower their opinion of the school.

A concerns notice must be issued before commencing civil action in court for defamation. It must set out a way for the publisher to make amends for their defamatory statement. if the publisher agrees to make amends, you cannot then commence a civil claim for defamation.

You may also wish to speak to a PR specialist about generating positive publicity and controlling the narrative. in our experience, damage to a school’s reputation is often best resolved by lawyers, a PR specialist and marketing working together.