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Most people have a skewed understanding of defamation, but it is easy to understand why. Reports in the media would have you believe that defamation is mostly about celebrities fighting with journalists and gossip columnists over their portrayal in newspapers or magazines. In reality, defamation law does not just apply to newspapers but to all forms of communication, including online posts. Additionally, social media has an increasing prevalence in our lives. Due to growing businesses, more and more people are bringing defamation actions to the courts in response to an online post on social media or a negative online review. This article explains: 

  • the elements of online defamation; 
  • the defences to online defamation; and 
  • how to make a claim.

What Is Defamation?

Defamation is the publication of communication that:

  • clearly identifies a person or small business; and
  • damages that person or small business’ reputation.

To prove that the online post is defamatory, you must show that the online post is false and negatively affects you or your business’ reputation.

The elements that you need to establish for an online defamation claim include that the online post:

  1. was published and made available to another person or to the public;
  2. clearly identifies you or your business; and
  3. is, in fact, defamatory, meaning that it hurt you or your business’ reputation.

Who Can Bring a Defamation Claim?

Only individuals, certain not-for-profit corporations and corporations with ten employees or less can sue for defamation. Further, a person seeking to sue for defamation has 12 months from the date of publication of the defamatory online post to make a claim against the publisher of the online post.

What Are the Defences to Online Defamation?

Additionally, there are many defences to defamation, making this area of law very complex. However, the most relevant defence to defamation is the ‘Truth’ defence. Hence, if the other person can establish that their online post is substantially true, they may be able to rely on this defence.

Some of the available defences to defamation include: 

Truth/Justification

If you can prove that your communications are true in substance or not materially different from the truth, you can rely on this defence.

Honest Opinion

To establish an Honest Opinion defence, you have to prove that the communication was an expression of your opinion (rather than fact), that the opinion was a matter of public interest and it was based on proper material.  

Qualified Privilege

Some material is protected by the law, such as when you are giving evidence in court or a tribunal, or publishing to a limited group who have a genuine interest in the subject matter of the publication.

Innocent

Dissemination

If you publish something that is written or created by someone else and you can prove that you did not know that the material contained defamatory content, you may be able to rely on this defence.

Triviality

If you can show that the communication was trivial and unlikely to cause harm, then you may be able to rely on this defence.

What Is a Concerns Notice?

The first step for taking action against someone in response to a defamatory online post is sending them a concerns notice. A concerns notice is a formal letter that has a prescribed format under the Defamation Act. Additionally, the purpose of a concerns notice is to try and resolve the matter and avoid taking it to court. A concerns notice sets out, in writing:

  1. the defamatory content, including screenshots of any online posts you are alleging, are defamatory; 
  2. an outline of the imputations of the defamatory online post.
    For example, if someone posted a fake online review about getting food poisoning at your restaurant, an imputation of this might be that your business is not able to maintain good hygiene standards; and
  3. an offer to make amends, which could include:
    • an amount you think is a fair compensation for damages due to the defamatory online post;
    • a request for a reasonable correction of the online post; and
    • a request for a written apology to be able to show any interested third parties.

Once sent, a concerns notice is open and capable of acceptance for a period of 28 days.

Key Takeaways

Defamation is a very complex area of law and can be very costly to pursue. Before you plan to sue someone for defamation, consider whether there is some way to ask the person to remove the defamatory online post first. After exhausting all other avenues, you may want to consider making a defamation claim. If you have concerns about any communication that could be defamatory, contact LegalVision’s dispute resolution lawyers on 1300 544 755, or fill out the form on this page.

Frequently Asked Questions

What is defamation?

It is the publication of communication that clearly identifies a person or small business and damages that person or small business’ reputation.

Who can bring a defamation claim?

Only individuals, certain not-for-profit corporations and corporations with ten employees or less can sue for defamation. This means larger corporations are unable to make a claim.

What is a concerns notice?

You can send a concerns notice in response to a defamatory online post. It is a formal letter that aims to try and resolve the matter so that you do not have to take it to court.

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