Defamation cases can attract a lot of attention in the media, particularly when they involve well-known celebrities like Rebel Wilson or Geoffrey Rush.
Defamation cases, however, are not exclusive to those with a high profile. Use of social media has escalated to the point that it is a daily ritual for many, with the potential for defamatory material to transcend across vast audiences within seconds. It has become increasingly important to appreciate the type of conduct that may leave a person or organisation liable for defamation, and to know your rights if you have been the victim of a defamatory publication.
This article provides general information regarding defamation laws in Australia which, apart from some differences, are relatively uniform between the states and territories. Your lawyer can explain the law as it applies to your jurisdiction and assist in commencing or defending a defamation matter on your behalf.
Defamation is the publication of an imputation (insinuation) about a person that damages, or is likely to damage, that person’s reputation. You may have previously heard defamation referred to as ‘libel’ or ‘slander’.
Essentially, Australia’s defamation laws aim to:
Defamation laws provide protection and compensation for individuals, not-for-profit organisations and companies employing less than ten people, who suffer loss of reputation caused by a defamatory publication. Although the legislation imposes limits on who can claim compensation, any natural person or legal entity including government bodies and companies may be liable for defamation.
A claim for defamation may arise from the publication of defamatory matter about a person. Defamatory material may be in the form of printed material such as an article, report, advertisement, letter or picture or in a spoken form such as an announcement or discussion, or a gesture. The subject matter may be conveyed in printed form or through media such as television, radio, internet or other forms of electronic communications.
Three essential elements must be satisfied to prove defamation, namely, publication, identification, and the existence of a defamatory matter. Additionally, there must be no defence available to the publisher of the alleged defamatory material.
The information must have been published or communicated to a third party and identify the aggrieved person. It is not necessary that the material names the person claiming to have been defamed, provided there is sufficient information that would reasonably identify that person to a third party. A simple example would be material that refers to somebody’s daughter, son, or mother.
The information must contain a defamatory matter. In determining whether material is defamatory, it must be shown that a reasonable person would likely think less of, shun, avoid or ridicule the aggrieved person because of the publication. The intention of the person or entity publishing the material is irrelevant, and the publication need not actually affect the person’s reputation, provided it is reasonably capable of doing so.
Various defences may be available in response to a claim for defamation. These typically include:
Generally, the most common defence is justification – that the imputations are substantially true; or that in addition to the defamatory material, the matter contained one or more imputations that were substantially true and reputational loss suffered by the aggrieved person is no worse as a result.
Following is the general process adopted when pursuing a defamation matter, noting that although defamation laws are mostly uniform across Australia, it is important to obtain advice specific to your jurisdiction and your particular circumstances.
The offer may include additional remedial action to redress the harm sustained by the aggrieved person including the payment of compensation.
Court proceedings must generally be commenced within 12 months from the date a defamatory statement is made.
If successful, a judge will determine the appropriate damages payable which are capped to a statutory limit. Additional damages may only be awarded if the Court is satisfied that the circumstances of the matter warrant such an award.
Defamation matters can be complex and are by nature, generally emotive. Costs can escalate and it is important to obtain considered advice by a lawyer with experience in these types of matters.
If you or someone you know wants more information or needs help or advice, please contact us on (02) 9274 8820 or email firstname.lastname@example.org.