Defamation is the publication of material that causes harm to a person’s reputation. Under defamation law, if someone publishes material about you that causes others to think less of you, you can seek compensation for financial and other losses resulting from the publication. Written material, online posts, pictures or verbal statements can all be defamatory.

If a third party publishes or communicates information about you that contains false statements which could damage your reputation, you may be able to establish a defamation claim. 

Who Can Sue for Defamation?

Individuals can sue for defamation. Small businesses and not-for-profit companies can sometimes sue for defamation, but larger companies usually cannot. Larger companies with more than 10 employees can sue for ‘injurious falsehood’, which is distinct from defamation.

Privacy

Personal interests are not protected directly by defamation. The law of defamation protects individual interest in loss of reputation or social esteem, not self-esteem. Reputational harm distinguishes defamation from a privacy complaint.

Making a Defamation Claim

To successfully claim compensation for defamation in a court, you must prove the following three elements:

Material Must Have Been Communicated to a Third Party

The material must have been communicated to a third party. Additionally, the third party must have seen, heard or read the material. In the digital era, this can be quite easy to establish. For example, a social media post is considered a publication and it can easily be viewed by hundreds or thousands of parties.

Person Claiming to Have Been Defamed Must Be Identifiable

Even if you are not specifically named, a court would consider whether an ordinary reasonable person could ascertain from the published material that it was made about you in particular.

Material Must Be Defamatory

In testing whether material is defamatory in nature, you need to prove that the material published contains one or more defamatory ‘imputations’. An imputation is a meaning that can be derived from a word or phrase. This can be through its ordinary meaning, or by way of implication or innuendo. 

You are also entitled to make a claim within one year from the date of the defamatory material being published. This may be extended to three years if the court is satisfied that the action could not reasonably have been commenced within one year.

Recent Changes to Defamation Law

Each state in Australia has passed defamation legislation which, until recently, has been mirrored in each jurisdiction.

On 1 July 2021, nationally-agreed reforms to Australia’s defamation laws will commence in NSW, Victoria and South Australia. However, the remaining states have not yet confirmed the date that they will update their legislation.

The key change of the recent amendment includes a ‘serious harm’ requirement. This means that in order to bring a successful defamation claim, you will also need to actively prove that you suffered, or are likely to suffer, serious harm. This is in addition to the three elements listed earlier.

Concerns Notices and Offer to Make Amends

Before you go to court, you have the option of issuing a concerns notice, which is a formal notice that provides the defaming party a formal opportunity to make amends. From 1 July 2021, it will be mandatory to issue a concerns notice before you can proceed to court in NSW, Victoria and South Australia.

Defences to Defamation

Defamation laws are carefully designed to ensure that they are not overly restrictive. As such, there are a number of defences to defamation that you can rely on in court. Some examples of these include:

Defence

Explanation

Justification/Truth

If the defamatory statement is substantially true, as opposed to false or misleading.

Honest Opinion

If the defamatory statement was an expression of opinion rather than a statement of fact, and that opinion relates to a matter of public interest, and it is based on material that is substantially true, you may be able to rely on honest opinion as a defence.

Innocent Dissemination

It is a defence to publishing defamatory material if the publisher can prove that they published the material in the capacity of a ‘subordinate distributor’. This means that they were not the primary distributor, neither knew or could not have reasonably known that the matter was defamatory and did not have the knowledge because of any negligence. 

Public Interest

This is a new defence that is being introduced in 2021 by way of an amendment to the defamation legislation. To rely on this defence, you would need to prove to the court that the material published was of public interest and that the publication is responsible. The intention of this defence is to protect responsible journalism.

Frequently Asked Questions about Defamation

Can defamation be a criminal offence?

Criminal defamation occurs when a person publishes defamatory material knowing it to be false, or without having any regard as to whether it is true or false, and in publishing the material intends to cause serious harm to another.

What is the difference between slander, libel and defamation?

The distinction between slander and libel has been abolished and the publication of defamatory matter of any kind is actionable.

What type of damages can I claim?

Compensatory damages, special damages and aggravated damages can be claimed – this will depend on the loss suffered, the effect of the defamation and the material that was published. There is a $250,000 ceiling on damages for non-economic loss ($421,000 when adjusted for inflation).

How can LegalVision help me?

LegalVision assists businesses and individuals with tailored online legal advice for a fixed fee, including defamation claims and defence. Call LegalVision today on 1300 544 755.

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