Defamation and Bodies Corporate – Can I sue for disclosure of my lot’s financial position?

Is your lot in arrears and therefore “un-financial” at the time of a general meeting, and did your body corporate manager disclose this information to other members? If you believe your body corporate manager has defamed you by disclosing your lot’s financial position during a general meeting, there are a few factors to take into consideration before proceeding with a defamation action. This will help determine whether it is worth the cost of litigation.

What is defamation?

Defamation is the publication of materials, by words or by any other means which lowers a person’s reputation in their community. Before you commence a defamation action, consider the following:

1. Was the material published;
2. Were you identified by the publication; and
3. Would an ordinary person reasonably understand the words to be defamatory?

It is important to note that defamation will not provide a remedy for hurt feelings, but for damage caused to your reputation.

Liability of Bodies Corporate and Committee Members at general meetings

The conduct of the meetings of bodies corporate are governed by the Body Corporate and Community Management Act 1997 (Qld) (“BCCM Act”) or the applicable regulation module with Body Corporate and Community Management (The Standard Module) Regulation 2008 (“Standard Module”). These place some significant qualifications on the limitation of liability for Bodies Corporate and Committee Members.

Bodies Corporate and Committees are only protected from liability for defamation where:

• Defamatory comments are included in the required material for a general meeting of the body corporate under the regulation module applying to the community titles scheme
  (s 111A (1)(a)-(b) of the BCCMA); and
• The publication was made by the body corporate or the committee, or a member of the committee, other than a member who submitted the motion or explanatory note containing the defamatory matter (s 111A (2)(a)-(b)).

Given the large amount of correspondence circulated within Bodies Corporate, the risk of potential defamation claims are significant, particularly where publications fall outside of the exception above.

How is the financial status of my lot considered “required material”?

Section 111A (3) of the BCCMA provides that required material for a general meeting of the body corporate includes:

• A motion submitted other than by or for the committee for a general meeting;
• The substance of a motion required under the regulation module applying to the community titles scheme; and
• An explanatory note prepared by the submitter of the motion.

Where a general meeting engages the rules and laws governing voting entitlements, the financial status of a member’s lot may fall under the definition of “required material”. If a motion is submitted under section 111A of the BCCMA, a bodies corporate will be protected from a defamation action if the defamatory material identifies any members who are considered “un-financial”, thereby falling under section 84 of the Standard Module, which provides:

“A person does not have the right to exercise a vote for a particular lot on a motion (other than a motion for which a resolution without dissent is required), or for choosing a member of the committee, if the owner of the lot owes a body corporate dent in relation to the lot at the time of the meeting.”

If you have not paid your levies or owe a debt to the body corporate at the time of a general meeting, your body corporate may be protected under the BCCMA or Standard Module for disclosure of your lot’s financial status.

The mere assertion that a member owes a debt to the body corporate, without more, is not capable of constituting a defamatory remark. It is possible that some people could jump to wild theories with respect to imputations arising from the publication of defamatory material, but the preferred interpretation by courts is whether the hypothetical right-thinking person would not have (Trkulja v Google LLC [2018] HCA 25 at [31]).

Caution: other defences to defamation

Other defences to defamation actions may include, but are not limited to:

• Triviality (Hurt feelings rather than reputational harm)
• Qualified privilege
• Absolute privilege
• Contextual truth

Committee members should be cautious not to respond immediately out of offence or anger to publications made during general meetings. We suggest that you consult with others who do not have a vested interest in your situation.

As highlighted above, the exemptions to defamatory publications made by bodies corporate is limited and committee members may have other causes of actions arising out of the publication of defamatory material.

Bodies Corporate Defamation – the next steps

If you feel that you have been defamed or someone is alleging that you have defamed them, our legal team will help you through what can be a very difficult and complex area.

If you need any more information or if you wish to speak with our defamation team today, please contact us.