• Defamation is the publication of something that is likely to cause harm to a person’s reputation. The law of defamation is designed to protect the reputation of individuals.
  • Each of the States has passed a Defamation Act 2005. The Act does not define the meaning of the elements of a defamation action – rather it is defined by the common law.
  • A corporation cannot sue for defamation, unless it is a non-profit organisation or employees fewer than 10 people and is not related to another organisation.

Elements of Defamation

Defamation is a communication from one person to at least one other person that harms the reputation of an identifiable third person. Three elements must be established under the Defamation Act.

Material must have been communicated

Defamation material must have been communicated to a third party, and the third party must have seen, heard or read the material. A defamation action is not possible if the third party is not aware of the material.

Material must be defamatory

In testing whether material is defamatory in nature, it is judged against the average person of average intelligence and whether they would make such an imputation. Courts may also consider the ordinary meaning of the material, the type of inferences that can be drawn from the words used.

Person claiming to have been defamed must be identifiable

An ordinary reasonable person must be able to ascertain from the material that it is in reference to a particular person.

Key Considerations

  • There is a $250,000 ceiling on damages for non-economic loss. Proceedings can only be commenced within one year from the publication of the defamatory material.
  • Defamation can still take place without mentioning a name – however, if the person can still be identified, this may give rise to a defamation action.
  • You should seek legal advice from a defamation lawyer if you are thinking about suing for defamation or if you receive a letter demanding to make amends for defaming someone.

Defamation in Australia

Statute of Limitations

If the defamatory matter was published after 1 January 2006, then the action is governed by the 2005 Act and it must be brought within 1 year from the date of the publication of the matter complained of. This may be extended to 3 years if the court is satisfied that the action could not reasonably have been commenced within 1 year.

Injurious Falsehood

Injurious falsehood can be defined as words which harm business and cause economic loss simply because they are wrong are not actionable as defamation. When the media simply get their business facts wrong and thereby cause commercial loss, generally speaking, they are only liable at common law if their actions fit the tort of injurious falsehood. It is necessary to show that a publication is false, that it was published maliciously and that it caused actual damage.

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.

Frequently Asked Questions about Defamation

Q: What defences are there to defamation?
A: There are a number of defences to defamation under the Act – best to speak to a defamation lawyer to see what actions are available for the aggrieved party. Defences include justification, contextual truth, absolute privilege, publication of public documents and qualified privilege.

Q: Can defamation be a criminal offence?
A: 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.

Q: What is the difference between slander, libel and defamation?
A: The distinction between slander and libel has been abolished and the publication of defamatory matter of any kind is actionable .

Q: What type of damages can I claim?
A: 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.

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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