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Defamation could occur if the guards were seen to be shown in a false manner that injured the reputation of their position.

There are 3 necessary elements to a valid cause of action for defamation:

Information was communicated by the defendant to a third person;

The information identifies the plaintiff; It doesn't need to name the person, purely be identified or easily identified: and

The information had defamatory imputations about the plaintiff.

In Dylan Voller's defamation case, Mr Kelleher, a former Northern Territory youth prison guard, advised the media "management had unfairly blamed him for the incident and he resigned two months later, claiming he’d received no support or training".

https://www.ntnews.com.au/news/northern-territory/don-dale-guard-says-he-was-made-scapegoat-for-tear-gassing-incident-involving-youth-detainees/news-story/b42f6c9b967565b3822e53226f1868c2

There was potential for Mr Kelleher to take the action further, as he was represented in a manner that lowers the publics opinion and in the eyes of the community.

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To use this website, cookies must be enabled in your browser. To enable cookies, follow the instructions for your browser below. Facebook App: Open links in External Browser There is a specific issue with the Facebook in-app browser intermittently making requests to websites without cookies that had previously been set.

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Defamation could occur in a variety of areas of making this documentary.

1. If the guards were identified and defamed in the manner of being unsuitable for their job.

2. If the boys that were being mistreated were portrayed as violent

3. If corrections minister was said to have been complicit in the treatment of the boys and was not interviewed for the documentary. In fact he was given the opportunity to explain himself.

Largely the video footage proves that contextual truth would be overwhelming in a defamation case which is why they showed long and full video footage so that they could not be accused of editing out correct information to mislead the audience.

ABC and 4 corners were obviously well versed in ensuring they presented an accurate account that would not put them in a vulnerable legal position with defamation.

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I did some further reading in relation to defamation in the Australia's Shame documentary and I found that in 2019, Dylan Voller, one of the children who actively spoke out about his experience in Don Dale, won a landmark defamation case after his legal team sued three media organisations' relating to "comments made by members of the public on the media organisations' public Facebook Pages (Gordon 2019).

Essentially, Voller became the target of bullying and false commentary online which included defamatory, unfounded accusations about him and his behaviour while in Don Dale.

Source: https://infolawcentre.blogs.sas.ac.uk/2019/09/18/landmark-decision-defamation-case-in-australia-holds-media-companies-liable-for-facebook-comments-dr-faith-gordon/

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There may be potential for defamation in the case of the Don Dale Detention centre, had the guards in question had been named and shamed, and presented in unfair way with no way to share their own side of the story.

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The corrections minister, John Elferink could have sued for defamation because of the way he was portrayed in the documentary. However, because the documentary showed actual footage of what was going on at Don Dale Detention Centre, the ABC would have been covered by Contextual truth.

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Defamation could potentially occur if the guards in the video were named and shamed, or being portrayed in a way that made them identifiable. The video, they could claim, takes the events outof context.
One suspects that the ABC would have ensured that what was shown in the harrowing scene where the guards spray down the boys locked in their cells was correct in context, especially as the events leading up to it were shown and described.

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Staff at the Don Dale Detention Centre were filmed carrying out certain acts in relation to the children held in detention. The individuals involved were not named, and the video footage was allowed to stand for itself. However, had the documentary commented on the behaviour of these individuals in the footage - perhaps on what those actions said about the staff as people - that may have been a basis for defamation to occur.

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The corrections minister at the time, John Elferink investigated whether to sue the ABC for defaming him. He felt that the journalist had not been honest with him in how the documentary was to be broadcast, and that he didn't get an appropriate right of reply, and that his side of the story was reduced to a couple of sentences on air.

The fact that he didn't proceed with a defamation case though suggests that his lawyers advised that the ABC could successfully defend the case.

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There is a potential for defamation to occur if the producers of the documentary name and shame people in defamatory manner or if they don't allow those named in the documentary to present their own side to the case.