Defamation in Owners Corporation & Strata Community: Understanding Your Rights and Obligations in NSW Strata

Introduction

Communication within a strata community is an essential part of daily life, but it can sometimes lead to disputes that affect reputations. In New South Wales, the law recognises that false or damaging statements made in a strata setting can have serious legal consequences for owners, residents, and strata managers.

Understanding how defamation applies in strata environments helps all members of the community navigate their rights and responsibilities. This guide explains the key legal principles, risks, and best practices to support respectful and lawful communication within your strata scheme.

Interactive Tool: See If You Qualify for a Strata Defamation Claim

Understanding Defamation in a Strata Setting

What Constitutes Defamation in Your Strata Community

Defamation occurs when a false statement is published that harms an individual’s reputation, lowering their standing in the eyes of the community. Within a strata scheme, disputes can sometimes escalate into damaging and unsubstantiated claims. These statements may involve a variety of parties who live and work within the community.

Any individual can be the subject of defamation in a strata context, including:

• Lot owners
• Tenants
• Strata committee members
• The chairperson
• Strata managers

For example, if an owner sends an email to the entire strata committee falsely accusing the strata manager of mismanaging funds, and this unsubstantiated claim is communicated to others and damages the manager’s professional reputation, it could constitute defamation.

Common Forms of Defamation in a Strata Scheme

In a strata environment, frustrations and disagreements can escalate, leading to defamatory statements being published through various channels. It is important to remember that even unintentional false statements can have legal consequences.

Common methods of publication in a strata scheme include:

• Emails and Written Letters: Heated exchanges over issues requiring legal advice on strata by-laws, noise complaints, or parking disputes can result in emails or letters containing false accusations or insults being sent to multiple recipients.
• Strata Meetings: During a debate in a general or committee meeting, a person might make an unfounded verbal allegation against another owner or a committee member.
• Meeting Minutes: If false and damaging statements made during a meeting are officially recorded in the minutes and distributed, the minutes themselves can be a form of defamatory publication.
• Social Media and Websites: Posts on community social media pages or websites that contain defamatory imputations about an identifiable individual are considered publications under defamation law.

Key Legal Elements for a Strata Defamation Claim in NSW

Establishing the Key Elements of a Strata Defamation Claim

To establish a defamation claim in a New South Wales strata context, three key elements must be proven. These traditional requirements ensure that only claims with a solid legal basis can proceed.

The essential elements are:

• Defamatory Meaning: The statement must carry a defamatory meaning. This means it would likely lower the person’s reputation in the eyes of ordinary, reasonable members of the community. For instance, falsely accusing a strata committee member of misusing funds would meet this standard, making it important to understand how strata committees work and the scope of their responsibilities
• Identification: The statement must clearly identify the person being defamed. The individual does not need to be named directly, as long as it is clear to those who received the communication who the statement is about.
• Publication: The defamatory statement must have been communicated to at least one other person. In a strata scheme, publication commonly occurs through:
  • emails sent to multiple owners,
  • comments made during meetings,
  • or posts on social media groups related to the building.

The Serious Harm Test for Your Strata Claim

Following legal reforms, a significant additional requirement was introduced to defamation law in NSW. Under the Defamation Act 2005 (NSW), a person bringing a claim must now prove that the publication has caused, or is likely to cause, serious harm to their reputation. This element sets a much higher threshold than previously required.

The legislation does not provide a specific definition of “serious harm,” but courts have considered several factors when assessing it. These include:

• Causation: There must be a clear link between the defamatory statement and the serious harm suffered by the individual’s reputation.
• Duration of Accessibility: The length of time the defamatory material was available can impact the level of harm. A statement that was accessible for only a short period may be less likely to cause serious harm.
• Audience: The size and nature of the audience are important. If the statement was published to a small group of people who did not believe it, establishing serious harm is more difficult.

Available Defences to a Strata Defamation Claim

The Defence of Qualified Privilege in Strata Communications

In a strata setting, the most relevant defence against a defamation claim is often qualified privilege. This defence protects communications made when the publisher has a legal, social, or moral duty to share information, and the recipients have a corresponding interest in receiving it. Crucially, the communication must be relevant to the shared interest of the parties involved.

This protection is particularly applicable to communications concerning the management and security of a strata scheme. For example:

• A strata manager emailing owners about repeated instances of breaching strata by-laws may be covered by qualified privilege, since the manager has a duty to inform and the owners have an interest in the matter.
• In Murray v Raynor [2019] NSWCA 274, an email about mailbox security sent to all owners was ultimately found to be protected by qualified privilege.

However, qualified privilege is not absolute. It can be defeated if the plaintiff proves the statement was made with malice, meaning the publisher:

• Acted with an improper motive, such as ill will, or
• Knew the statement was false and published it recklessly.

Other Key Defences: Truth, Honest Opinion & Triviality

Beyond qualified privilege, several other defences under the Defamation Act 2005 (NSW) can be crucial in refuting an allegation of defamation within a strata environment. Key defences include:

• Justification (Truth): Applies if the defamatory statement is substantially true.
  Example: A committee member accused of misusing owners corporation funds successfully relies on justification by proving the misuse occurred.
• Honest Opinion: Protects expressions of belief rather than statements of fact. For this defence to apply, the opinion must be genuinely held and based on proper material available at the time.
  Example: A lot owner stating the strata manager is performing poorly, based on direct observation of unresolved maintenance issues.
• Triviality: The defendant argues that the publication was unlikely to cause any harm to the plaintiff’s reputation. This defence focuses on the minimal impact of the statement, suggesting it is too insignificant to warrant a legal remedy.

Key Case Studies on Defamation in Strata

The Case of Murray v Raynor

The case of Murray v Raynor [2019] NSWCA 274 is a significant NSW decision that highlights the application of qualified privilege in a strata dispute. The conflict involved the chairperson of an owners corporation, a key role for anyone wondering what an owners corporation is, Mr. Raynor, and a resident, Ms. Murray, over the security of mailboxes in their Manly strata building.

After a series of break-ins, Mr. Raynor emailed residents, urging them to lock their mailboxes. Ms. Murray responded by sending an email to Mr. Raynor and copying all other owners and occupiers in the strata scheme. In her email, she accused him of:

• “Criminal” behaviour
• “Stalking”
• Having a “fixation” on her

Mr. Raynor subsequently sued for defamation.

Initially, the NSW District Court found in favour of Mr. Raynor, ruling that the email was defamatory and awarded him $120,000 in damages. The court determined that Ms. Murray had acted maliciously by publicly humiliating the chairperson.

However, this decision was later overturned by the NSW Court of Appeal. The Court of Appeal found that Ms. Murray’s email was protected by the defence of qualified privilege. It reasoned that the communication related to the management and security of the building, which was a matter of common interest to all owners and residents. The court also noted that the initial damages award was “manifestly excessive” and that the defence absolved the resident of wrongdoing.

The Case of Walden v Danieletto

In the Queensland case of Walden v Danieletto [2018] QDC 221, the court examined the defence of qualified privilege in the context of a body corporate manager’s duties. The dispute arose when a lot owner, Mr. Walden, paid his overdue levies online the day before a general meeting. Due to a system error, the payment was not registered in time.

During the meeting, the body corporate manager, Mr. Danieletto, stated that Mr. Walden was “unfinancial,” and this was recorded in the official minutes. Mr. Walden sued for defamation, arguing the statement harmed his reputation.

The court ruled in favour of the manager on two grounds:

• It found the statement was not defamatory.
• Even if the statement were defamatory, it was protected by qualified privilege because Mr. Danieletto was acting reasonably within his duties by informing the body corporate of a matter of common interest.

The decision was later upheld on appeal, reinforcing the protection this defence offers to strata professionals performing their roles.

Best Practices for Your Strata Communications

Guidelines for Email & Written Communications in Strata

Emails and other written correspondence in a strata setting create a permanent record, making it essential to communicate carefully to avoid potential defamation claims. Before sending any message, it is wise to consider its content, tone, and audience.

To ensure your written communications are respectful and legally sound, consider the following guidelines:

• Think before you send: Avoid using inflammatory language or making unsubstantiated accusations. It is often helpful to take time to process information before responding, especially if an email is upsetting.
• Stick to the facts: When addressing issues within the strata scheme, focus on providing factual information. Avoid making subjective statements or personal attacks that you cannot prove to be true.
• Be mindful of your audience: Exercise caution when deciding who to include in an email chain. Copying in unnecessary parties, particularly when discussing sensitive matters, can increase the risk of a statement being considered a defamatory publication.
• Be courteous and accurate: Always aim for a polite and professional tone in your correspondence. Double-check that the information you are sharing is accurate and consider whether your statement is a known fact or a reasonable opinion based on reliable information.

Proper Conduct During Strata Meetings

Strata meetings can become emotionally charged, but maintaining a professional and respectful environment is crucial for productive discussions and avoiding defamatory statements. All participants should adhere to established rules of conduct.

To foster a positive meeting environment, it is important to:

• Maintain decorum: Always conduct yourself in a respectful and professional manner. This includes avoiding personal attacks, not interrupting others while they are speaking, and contributing to a civilised debate.
• Focus on the agenda: Discussions should remain centred on the topics outlined in the meeting agenda. Introducing irrelevant issues or personal grievances can derail the meeting and lead to unproductive conflict.
• Respect confidentiality: Information shared during strata meetings is often confidential. You should avoid disclosing sensitive details outside of the meeting, especially if the information could harm another person’s reputation.
• Use appropriate channels for disputes: If a disagreement arises, it is best to pursue resolution through proper channels, and preparing for strata dispute mediation is a key step in that process.

Steps to Take in a Strata Defamation Dispute

What to Do if You Believe You Have Been Defamed in Strata

If you believe you have been defamed within your strata community, seek legal advice promptly. A lawyer can help you understand your rights and assess the strength of your claim before any formal action.

One of the first steps you might take is to issue a Concerns Notice. This formal document is sent to the person who made the statement and serves to:

• Identify the specific statements or communications you consider defamatory.
• Explain the defamatory meanings or imputations you believe they carry.
• Give the other party an opportunity to make amends through a retraction, an apology, or an offer of compensation.

Since defamation proceedings must be commenced within one year from the date the material was published, it is crucial to act quickly.

Responding to an Allegation of Strata Defamation

If you are accused of making a defamatory statement in a strata context, do not ignore the allegation. Instead, seek legal advice to understand your potential liabilities and explore any available defences.

A lawyer can help determine if a defence such as qualified privilege applies. For example, you may be protected if the communication:

• Was made as part of your duties as a strata manager or committee member, and
• Was shared only with those who had a legitimate interest in the information.

In such circumstances, you may be shielded from liability under the qualified privilege defence.

Conclusion

Defamation within strata communities is a serious issue with significant legal consequences for all parties involved, from owners to strata managers. Understanding what constitutes defamation, the available defences like qualified privilege, and the importance of the serious harm test are essential for navigating disputes and maintaining respectful communication.

If you believe you have been defamed within your strata scheme or are facing an allegation, it is crucial to seek timely legal advice. Contact PBL Law Group’s experienced strata dispute lawyers who can assess your situation, explain your rights and obligations, and guide you through the appropriate legal pathways. For broader assistance with compliance, governance, and ongoing strata matters, our NSW strata lawyers can provide comprehensive support tailored to your community’s needs.

Frequently Asked Questions