‘He said’, ‘she said’, ‘they said’.
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. The 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 at a glance
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:
- promote uniform laws across the country – apart from some exceptions, defamation laws are generally consistent;
- encourage the efficient, non-litigious resolution of defamation disputes; and
- provide fair remedies for those covered by the legislation who suffer loss of reputation by the publication of defamatory material, without unreasonably restricting freedom of expression.
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.
How is defamation proven?
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.
Defences to defamation
Various defences may be available in response to a claim for defamation. These typically include:
- honest opinion;
- truth or justification;
- qualified privilege (where material is published during the course of legal, tribunal or parliamentary proceedings);
- innocent dissemination (where the matter was contained in or extracted from a public document).
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.
Managing defamation disputes
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.
- An aggrieved person issues a ‘concerns notice’ to the person or entity who has allegedly published the defamatory material. The notice must detail the imputations of concern – if details are not properly particularised the publisher can request additional information which should be provided within 14 days.
- After receiving a concerns notice, the publisher may make a written offer to make amends within 28 days. The offer must:
– identify the notice as an offer under the relevant legislation;
– include any limitations regarding the offer and the defamatory imputations;
– include an offer to publish a reasonable correction of the matter in question and, where material has been provided to a third party, an offer to take reasonable steps to inform that party that the matter is or may be defamatory;
– include an offer to pay the aggrieved person’s reasonable expenses incurred before the offer was made, and the person’s costs in considering the offer.
The offer may include additional remedial action to redress the harm sustained by the aggrieved person including the payment of compensation.
- If the offer is accepted terms of settlement are prepared and the aggrieved person may not proceed further against the publisher with respect to that matter. A person’s refusal to accept a valid offer may be used in subsequent legal proceedings.
Going to Court
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.