The internet has provided people with ample opportunity to offend each other. Sometimes the offending conduct affects a person’s reputation and they might try and correct this by bringing a claim in defamation. If you are someone who engages in online commentary, you should be aware of what is considered defamatory. This article sets out what defamation is and what you should if you defame someone.

What is Defamation?

Defamation occurs when you say or write something about someone that has a false meaning that affects the reputation of that person negatively.

For a defamation claim to be established the complaining party must prove that:

  1. you published the defamatory matter, meaning you made it available to another person;
  2. the defamatory matter identifies or is about the person complaining; and
  3. the defamatory material is in fact defamatory, meaning that it hurt their reputation.

‘Defamatory matter’ may take the form of spoken or written words, pictures, gestures, signs and other visible representations.

To be defamatory, the matter must disparage a person’s reputation, meaning it lays a person open to hatred, contempt, ridicule, or lowers the person’s esteem in the eyes of right-thinking members of society. It does not include matter that simply hurts someone’s feelings. Additionally, matter will not be defamatory if it concerns aspects a person cannot control, such as their physical appearance.

For example, if you were to make a comment on a Facebook fan page, or in the comment section of a news article, stating that a famous sportsman was obese, and slow, that could be defamatory as it may well affect their reputation as a professional.

Who Can Bring a Claim of Defamation?

If you defame an individual it is likely they can bring a claim against you. However, if you defame a business or corporate entity, that business can only bring a claim against you if they have fewer than 10 employees.

If you can prove that your comment is substantially true, you might have a defence to defamation. Courts may consider defamatory material to be true if you prove that the gist of the offensive meaning of your comment is true.

Is Your Comment Your Honest Opinion?

If you were merely expressing your opinion, you may well have a defence to a claim of defamation. To rely on the defence of honest opinion you will have to show:

  1. it was obvious to the third party or audience that you were merely expressing your opinion. For example, you thought the food at the restaurant down the street was overpriced and your steak was overcooked;
  2. it was a matter which is in the public’s interest. For example, you were commenting on a public figure like a politician; and
  3. it was based on ‘proper material’, meaning your opinion was based on material that is substantially true. For example, you actually watched a movie and you are making a comment about your thoughts on the film.

However, the defamed person can challenge your defence by proving your dishonesty and that you did not honestly hold that opinion at the time you published your comment.

Was it Trivial?

You can defend publishing defamatory material if you can prove that it was unlikely to cause any real harm. For example, if a derogatory comment is made about you to your relative, and that relative is unlikely to think any less, whoever made the comment may rely on the defence of triviality. However, this defence is unlikely to apply to comments made online because a large number of people can read those posts.

Key Takeaways

Your online posts might affect someone’s reputation and make others think less of them. In such circumstances, it is likely you are defaming them. However, comments will not be defamatory if they are your actual opinion and they are either true or well informed. What you post online has the potential to be read and accessed by a large amount of people. The more people that see your comment, the more likely it is to be damaging and therefore defamatory.

For these reasons, it is crucial you do not take part in trolling or making malicious comments for ulterior motives, especially if you know they are untrue. You can cause someone’s business or personal reputation a lot of damage and you may be held accountable for that, so think before you click ‘post’. If you are concerned that you have defamed someone or have any questions, get in touch with LegalVision’s dispute resolution lawyers on 1300 544 755 or fill out the form on this page.

Charlotte Hale
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