If someone has published derogatory comments about you, you may be able to sue for defamation. If an email contains false information which lowers your reputation, it could also be considered legally defamatory. This article will set out what you should consider when evaluating whether an email might be defamatory, and the options you might have if you want to pursue a defamation claim.

What is Defamation?

For an email to be defamatory, it must:

  • be communicated or published to a third party;
  • include defamatory information;
  • be about the target of this information;  and
  • not have a lawful excuse for its publication.

It is important to note that not all hurtful statements are defamatory. If you think you have been defamed over email, it is worth considering the elements above in more detail to ensure that the criteria have been met.

Publication of The Defamatory Comments

Someone must publish the statement to a third party who is not the target of the statement. If someone has sent an email to you only that contains false statements about you, you cannot claim defamation.

However, if someone copied a third party into the email, it will be legally considered that they published the information. Additionally, if a defamatory email that was initially between you and the other party was forwarded to colleagues, it would be considered to have been published.

What Counts as Defamatory Information?

For comments to be defamatory, they must have damaged someone’s reputation. Hurt feelings are not enough. You should consider whether the comments or information would:

  • lower the public’s opinion of you;
  • expose you to hatred, contempt or ridicule; or
  • cause you to be avoided or shunned by others.

To satisfy this requirement, you do not need to show that you have already suffered loss or damage as a result of the defamatory statements.

The Information Must Be About the Target

To establish defamation, it is necessary to show that an email identifies you as the target of the statements. It does not need to include your exact name. Instead, it is enough to show that a reasonable person would understand the defamatory comments were referring to you.

For example, the email might include defamatory material that refers to you by your nickname.

What Are the Defences of Defamation?

There may be grounds for a defamation claim if an email contains harmful statements that satisfy the above criteria. However, defences to defamation commonly put an end to the claims before they begin.

In the context of email defamation, two relevant defences are truth and opinion.

1. Truth

The defence of truth can ultimately put an end to a defamation claim. If the statements in the email are true, you cannot claim defamation as you were truthfully represented in the email.

The statements only need to be ‘substantially true,’ rather than completely true. As a result, the other party would need to show that the fundamental aspects of the statements are accurate.

2. Opinion

This defence may apply where it can be shown that the published material was:

  1. an expression of opinion, rather than fact;
  2. related to a matter of public interest; and
  3. based on material that was substantially true.

This may be a difficult defence to make out where damaging comments are made about you over email.

Questions to Ask if You’ve Been Defamed Over Email

If you have received an email containing defamatory statements about you that satisfy the above criteria, you might be wondering what to do. Here are some questions for you to consider to help guide your next steps:

1. What Is Your Desired Outcome?

Defamatory statements can be hurtful and aggravating. Before taking action, determine what you want to achieve. You may want the other party to:

  • retract the statements;
  • make a personal or public apology; or
  • compensate you for the loss that accrued because of the defamation.

Figuring out your desired outcome is an essential step because it may mean that legal proceedings will not be the best way to achieve your goal.

For example, where defamatory comments have been made over email to a small group of work colleagues, it is likely that the most effective way to have those statements retracted is to speak with the other person directly.

2. Have You Contacted the Other Person?

In most disputes, contacting the other side is an effective and appropriate first step. In many situations, the other party may be willing to retract the statements and make an apology. If your desired outcome is a retraction and an apology, a follow-up email from the offender is the quickest way to do this. Even if you aren’t sure it will work, it’s worth asking.

3. Are You Willing to Spend Time and Money on This Matter?

Many people are unaware of the financial burdens of a defamation case. Defamation is a complex area of law, and even pre-litigation cases can involve hefty legal fees.

Unfortunately, some matters cannot be resolved through negotiation, and court proceedings may be the only way to achieve your desired outcome. Though very few cases make it to court, when they do, legal fees are commonly tens of thousands of dollars.

Key Takeaways

Where false statements have been published over email, and they have lowered your reputation, you may be able to claim defamation. However, it is crucial to consider the appropriate method to resolve your dispute before bringing a claim. Legal proceedings are not always the most effective way to put an end to hurtful statements.

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.
Sam Burrett

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