Defamation refers to any statements (online or in real life) that are harmful to somebody’s reputation. ‘Injurious falsehood’ refers to statements that may cause reputational damage, however, it usually refers to the reputation of a business and not an individual. As a rule of thumb, corporate entities can’t necessarily be embarrassed or upset by defamatory statements. As such, matters of injurious falsehood typically relate to the commercial interests of a company.

The common law considers defamation and injurious falsehood as quite distinct. Essentially, injurious falsehood involves malicious intent through a false statement made about another business, used to induce others to act in a way that causes that business harm.

How does defamation compare with injurious falsehood?

There are slight differences between the two causes of action in terms of what must be proven in court:

  • In a matter of injurious falsehood, the business must show that the publication was actually untrue, whereas in defamation falsity is already a presumption at common law;
  • The business must also show that the publication had a malicious intent, whereas in a defamation case it is unnecessary to prove, except to the extent that it may go towards proving damages;
  • On top of this, the business has to show actual damage, whereas in defamation cases the damage is presumed at the moment the publication has been shown to be defamatory.

All in all, it is more difficult to succeed with bringing a claim of injurious falsehood than a claim of defamation because of the added elements of the offence that need to be proven, as well as the requirement to show actual damage and not simply the potential of damage.

Simply that a false statement is made does not mean injurious falsehood will apply; the statement must have been made with malice. That means that the person must have intended to inflict damage on the reputation of the person or business that is being defamed. The presence of malice is sometimes judged by whether the person making the statement acted in good faith. While malice suggests intention to cause harm, recklessness is not far off. If you recklessly make a statement about another business without verifying the truth of the statement or knowingly making an untrue statement, you may be still be liable for making such an injurious statement, regardless of any intention to harm.

In any case, the onus of proof falls on the plaintiff to show that there statement was made maliciously. Just because the maker of the statement has no ‘just cause or excuse’ to make such a statement won’t make the conduct of the defendant malicious.

It must be shown (by the plaintiff) that there was actual loss caused by the alleged defamatory statement. If, for example, a client called the business to cancel a purchase or request a refund, this may show actual damage. Nevertheless, the proof of actual loss does not need to be so precise; showing some loss of business generally may suffice.

Conclusion

There is an important difference between defamation and injurious falsehood, both in terms of remedies available to the business or individual being defamed/ injured, and in terms of the onus of proof needed to prove the offence. For more information regarding the differences between defamation and injurious falsehood, contact LegalVision on 1300 544 755 to get expert legal advice from one of our experienced business solicitors.

Emma Jervis

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