Summary
- Defamation occurs when published material (including online posts, images, or videos) identifies a person, has a false meaning that lowers their reputation in the eyes of reasonable people, and has caused or is likely to cause serious harm to their reputation.
- Individuals, sole traders, and small companies with fewer than 10 employees can bring defamation claims in Australia, but large companies and public bodies cannot, and deceased persons cannot be defamed under Australian law.
- Key defences include substantial truth, honest opinion (where the opinion was genuinely held, based on proper material, and clearly expressed as opinion), public interest, and innocent dissemination, but if found liable, consequences can include substantial damages, legal costs, injunctions, and reputational damage.
- This article is a guide to defamation law for individuals and businesses in Australia, explaining what constitutes defamation, who can bring a claim, available defences, and the consequences of being found liable.
- LegalVision is a commercial law firm that specialises in advising clients on defamation and dispute resolution matters.
Tips for Businesses
Think carefully before publishing online commentary about individuals or businesses, as posts can reach large audiences and remain accessible indefinitely, increasing the likelihood of meeting the serious harm threshold. Ensure any critical statements are either substantially true or clearly expressed as genuine opinion based on proper material. If you believe you have published defamatory content, seek legal advice promptly, as an early apology or correction may reduce the damages awarded against you.
The internet has provided people with enough opportunity to offend each other. Sometimes the offending conduct affects a person’s reputation, and they might try to 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 do 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:
- you published the defamatory matter, meaning you made it available to another person;
- the defamatory matter identifies or is about the person complaining;
- the defamatory material is in fact defamatory, meaning that it lowers their reputation in the eyes of ordinary reasonable people; and
- the publication has caused, or is likely to cause, serious harm to 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 matters that simply hurt someone’s feelings.
Some common examples of defamatory online posts include:
- Stating that a famous sportsman is obese and slow, as it could affect their reputation as a professional
- Falsely stating that somebody committed a crime
- Publishing false statements about a business, such as “XYZ Restaurant uses rotten meat”, where this is not factual
- Sharing fake edited photos or videos that may falsely represent somebody acting in a negative manner
- Making false claims about somebody’s financial situation, including stating that somebody is bankrupt when they are not
The situation and context matter. A statement that seems harmless in one context can be very damaging in another. For example, falsely saying that a vegan runs a butcher shop could be defamatory depending on how it affects their reputation in their community.
Who Can Bring a Claim of Defamation?
If you defame an individual, it is likely that they can bring a claim against you. However, if you defame a business or corporate entity, there are more complicated requirements.
Individuals and Competitors
Any living person whose reputation has been damaged can sue for defamation. This includes:
- Ordinary people;
- Public figures, including politicians, celebrities, and business leaders;
- Professionals such as doctors, lawyers, and tradespeople; and
- Business owners and sole traders.
Businesses and Not-for-Profits
Under the Defamation Act 2005 (NSW) and similar laws across Australia, companies cannot bring defamation claims unless they:
- Are a not-for-profit; or
- Have fewer than 10 employees; and
- Are not a public body.
This means small businesses set up as companies can still sue for defamation, but large companies cannot. Not-for-profit organisations may also be excluded if they have 10 or more employees.
Deceased Persons
You cannot defame a dead person under Australian law. The family of a deceased person cannot sue on their behalf, no matter how damaging the statements might be.
Serious Harm Requirement
To succeed in a defamation claim, the plaintiff must prove that the publication has caused, or is likely to cause, serious harm to their reputation.
The judicial officer (not the jury) determines whether serious harm has been established. Courts will consider factors such as:
- The extent of publication (how many people saw it);
- The nature and gravity of the defamatory imputation;
- The identity and standing of the person defamed; and
- Whether the matter has already been published elsewhere.
Whether the serious harm threshold is met depends on the circumstances of each case. Online posts can potentially reach large audiences and remain accessible indefinitely, which may support a finding of serious harm. However, a post that receives very limited views or engagement, or is only seen by a small number of people, may not meet the serious harm threshold. The key question is whether the publication has actually caused, or is likely to cause, serious damage to the plaintiff’s reputation.
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Key Defences to Defamation
If someone sues you for defamation, you have several possible defences.
Truth
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. Under the Defamation Act 2005 (NSW), it is a complete defence if you can prove that what you said is “substantially true”. You do not need to prove every single detail is correct, only that the main point of your statement is true.
For example, if you post that a tradesperson “did a terrible job on three houses in your street,” you would need to prove that they actually did poor quality work on those projects. Small mistakes will not matter if the main claim is true.
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:
- 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;
- it was a matter that was in the public’s interest. For example, you were commenting on a public figure like a politician; and
- 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.
Other Defences
You may also have a defence if:
- You had a duty to share the information, and the person receiving it had a genuine reason to know about it, and you acted reasonably;
- The matter you published was about an issue of public interest, and you reasonably believed publishing it was in the public interest;
- You were just passing on information (like an internet service provider) and had no knowledge of the defamatory content.
Consequences of Defamation
If a court finds you liable for defamation, the consequences can be serious and very expensive.
Court Proceedings
Defamation cases in Australia are usually heard in the Supreme Court of your state or territory. In some states, smaller claims can be heard in the District Court. Someone has one year from when you published the defamatory material to sue you, though courts can sometimes allow more time.
Damages
If you are found liable for defamation, you may have to pay money to compensate the person for damage to their reputation. You may have to pay extra damages if you acted maliciously or did not care whether your statements were true. Courts consider whether you apologised, whether you tried to justify what you said, and how you behaved during the case.
Recent examples of large damages payments include:
- A case in 2022 where Google was ordered to pay $715,000 for defamatory YouTube videos (later settled);
- A case in 2019 where actor Geoffrey Rush was awarded $2.9 million (later reduced to $850,000 on appeal) for defamatory newspaper articles.
Injunctions
Courts can order you to stop publishing defamatory material. A temporary order may be made before the trial if the person can show there is a serious case and that money alone would not fix the damage. Permanent orders may be made after you are found liable to stop you from publishing the material again.
If you break an injunction, you can be fined or even sent to prison for contempt of court.
Legal Costs
Legal costs in defamation cases are often the biggest financial burden. If you lose, you will usually have to pay the other person’s legal costs as well as your own.
In Australian courts, the losing party generally pays the winning party’s legal costs, though usually only 60-70% of the actual costs. Courts can make different orders in some situations.
Other Consequences
Beyond paying money, being found liable for defamation can:
- Damage your own reputation;
- Result in court orders requiring you to apologise and publish corrections;
- Lead to negative media coverage about you;
- Affect your job or business relationships; and
- Create a permanent public court record.
This guide provides key information on how to manage a business dispute as quickly and cost-effectively as possible.
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 number of people. The more people who see your comment, the more likely it is to be damaging and therefore defamatory.
For these reasons, it is crucial that you do not take part in trolling or making malicious comments for ulterior motives, especially if you know they are false. 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, LegalVision provides ongoing legal support for all businesses through our fixed-fee legal membership. Our experienced dispute resolution lawyers help businesses manage contracts, employment law, disputes, intellectual property, and more, with unlimited access to specialist lawyers for a fixed monthly fee. To learn more about LegalVision’s legal membership, call 1300 544 755 or visit our membership page.
Frequently Asked Questions
No, Australian law does not recognise defamation of deceased persons. Family members cannot bring a defamation claim on behalf of someone who has died, regardless of how damaging the statements may be.
Courts consider the extent of publication, the nature and gravity of the defamatory imputation, the identity and standing of the person defamed, and whether the material has already been published elsewhere.
You may pay compensation for reputational damage, additional damages for malicious conduct, and the other party’s legal costs. Recent cases have resulted in damage awards ranging from hundreds of thousands to millions of dollars.
Yes, courts can issue injunctions requiring you to stop publishing defamatory material, order public apologies and corrections, and impose contempt of court penalties, including fines or imprisonment for breaching injunctions.
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