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In Australia, it is defamatory to seek to damage someones (or, subject to certain exceptions, their business’) reputation by making statements in a public context that are damaging or insulting. In addition, if someone has sent an email containing false information that lowers your reputation, it could also be considered legally defamatory. The following article will explain whether you can defame someone over email. Furthermore, it will outline 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. Overall, if you think you might have a defamation case, we recommend seeking legal advice before the problem worsens.

What Is Defamation?

Defamation can include any publication that could damage someone’s reputation or public image. Therefore, it is possible to defame someone over email. For example, 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.

Remember, not all hurtful statements are defamatory. If you think that somebody has defamed you over email, it is worth considering the elements above in more detail to ensure that the material fulfilled the criteria.

Publication of Defamatory Comments

The defamatory material, or false information, must be published to a third party that is not the statement’s target. On this basis, if you have received an email solely addressed to you that contains defamatory material about yourself, you cannot claim defamation. However, we recommend that you engage a lawyer to review the email. This is because you may have another cause of action available to you.

If someone copied a third party into the email, the law will consider that they published the information. Forwarding an email that was originally between you and the other party to a colleague would be considered ‘published’ for the purposes of defamation.

What Counts as Defamatory Information?

As stated above, material of any kind can be defamatory if it damages someone’s reputation. On this basis, 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.

It is not necessary to demonstrate that you have already suffered loss or damage due to the defamatory statements to claim defamation.

To establish defamation, you must demonstrate that the email identifies you as the target of the statements. It does not need to include your full name, as long as it is enough to show that a reasonable person would understand the defamatory comments were referring to you specifically.

What Are the Defences to Defamation?

While it is possible to defame someone over email, you will want to consider defences to a claim of defamation before taking any action. There are several defences to a claim for defamation, but you can find the two grounds you should be aware of in this particular case below. Typically, a defence to defamation will put an end to a claim before it escalates. 

Truth

If the statements in the email are true, you will not be able to claim defamation. However, there is some nuance to this defence. A statement need only be substantially true to satisfy a defence on the basis of truth. This means that the other party would need to demonstrate that the fundamental aspects of the statements are accurate.

Opinion

This defence will apply if the other party can demonstrate 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 substantially true material.

This might be a challenge for the other party because they delivered the material via email.

Should I Pursue Legal Action?

Before you allege defamation, we recommend that you ask yourself the following questions.

What Is Your Desired Outcome?

What do you want the other party to do? Do you want them to retract the statements? Or, do you want them to make a personal or public apology, or compensate you for the loss accrued because of the defamatory statements? 

Have I Contacted the Other Party?

You may be able to resolve the issue simply by contacting the other side and asking appropriately to retract the statements. In addition, especially in an email context, you have the option of easily replying to the email in question.

Is This Worth Spending Time and Money?

A defamation case can sometimes end up incurring considerable fees from both sides. In particular, if you do not succeed, you should ready yourself to cover both the other sides’ legal costs and your own.

Key Takeaways

While it is possible to defame someone over email, you should think before you allege. Ask yourself, aside from the hurt feelings, is the information in the email false and will it significantly damage your reputation? If you have tried reaching out to the other side, and their response was not helpful, then you may need to consider bringing an action for defamation against them. If you have any questions about whether an e-mail has defamed you or your business, contact LegalVision’s disputes and litigation lawyers on 1300 544 755 or fill out the form on this page.

Frequently Asked Questions

What happens if somebody sends me a defamatory email about myself?

This will only constitute defamation if a third party is attached to the email. If you have received an email solely addressed to you that contains defamatory material about yourself, you cannot claim defamation.

What are some defences to a claim of defamation?

If a comment is substantially true, or if the comment was an expression of opinion and not fact, these will generally be considered defences to a claim of defamation.

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