If somebody published false comments about you that negatively affected your reputation, you might want to consider bringing a claim of defamation. However, before doing so, it is essential to know what makes a good defamation claim. Defamation disputes are often lengthy, so you will need to decide whether it is in your best interests to pursue one. This article will outline what is required to build a strong case for defamation.

Are the Elements of Defamation Satisfied?

Defamation occurs when someone communicates something to others about another person that has a false meaning and negatively affects that person’s reputation.

For a successful defamation claim, you must prove several factors:

1. Publication

You must show that the person you are accusing is responsible for publishing defamatory material. When someone makes comments in writing, proving this element is relatively simple.

However, when you hear comments by word of mouth, proving this is more complicated. Publication can occur in all different forms, and there is no requirement for the material to be written.

2. Identification

You must prove that the defamatory material sufficiently identified you. While it is not always necessary for the defamer to use your name, it is required by law that an objective person must understand that the comments are about you.

3. Hurt to Reputation

The defamatory material must be capable of hurting your reputation. If an ordinary person is unlikely to think any less of you because of the comments, they might not be considered defamatory. 

Are the Comments Defamatory?

To be defamatory, the comments must damage your reputation. This means that it leaves you open to:

  • hatred;
  • contempt;
  • ridicule; or 
  • lowers your esteem in the eyes of society.

This means that the matter must be capable of causing people to think less of you. The matter will not be defamatory if it only concerns your physical appearance or other attributes you cannot control. 

For example, if someone were to tell others that you stole money when you did not, this is likely to be considered defamatory.

However, if they were to say you are short and fat, this is unlikely to be considered defamatory by a Court (however, it certainly would be rude!).

Are You Able to Bring a Claim?

If someone made comments that targeted you as a person, you likely can bring a claim against this publisher. However, if the statements you are concerned about were made about your business, it is more complicated. 

If someone directed defamatory comments towards your business, you can only bring a claim of defamation if you have fewer than ten employees. If someone has made false comments about your business and you have more than ten employees, you may wish to bring a claim of injurious falsehood instead. 

Does the Defamer Have a Defence?

A good claim for defamation is one where the defamer does not have a strong defence. To assess whether you have a good claim, you need to consider whether the other party will be able to rely on a defence. Some of the most common defences to defamation include:

Truth

If the defamer can prove that the comments were substantially true, you will not have a strong case. Courts may consider defamatory material to be true if the gist of the offensive meaning of the comment is true.

Absolute Privilege

This defence arises if the defamer can demonstrate that they published the matter in the course of proceedings that is subject to absolute privilege. These circumstances might include when giving evidence in court or a tribunal.

Qualified Privilege

The defence of qualified privilege arrises when the defamer has a duty to publish the matter to a specified group who have a genuine interest in receiving the publication.

For example, circumstances that attract qualified privilege include communication between:

  • employer and employee;
  • teachers and parents; and
  • the police and people who are answering their enquiries.

Public Document 

It is not defamatory if you republish material which was available in a public document. These public documents might include a judgment or determination of a court or tribunal.

Honest Opinion 

To rely on this defence, the defamer will need to show that it was:

  • evident to the third party that they were merely expressing their opinion;
  • a matter which is in the public interest; and
  • based on ‘proper material’, meaning the opinion was based on substantially true material. 

Triviality

If the defamer can prove the material was unlikely to cause any real harm, they can have your claim dismissed. Therefore, make sure that you have evidence of the harm you have suffered before looking to bring a claim of defamation. 

For example, if you have evidence that you have lost job opportunities because of the defamatory comments, this will show that the harm you suffered was not merely trivial.

Key Takeaways

To have a strong case of defamation, you need to first satisfy all of the elements to bring a claim. If the person responsible for the publication has a strong defence available to them, they may be able to weaken your claim. Therefore, when assessing the prospects of your success, you must first consider the availability of any defences, especially the defence of ‘truth’. If you are confident that your claim satisfies those elements, you should consider taking the appropriate steps to enforce your rights. If you are concerned that you have been defamed, contact LegalVision’s dispute resolution lawyers on 1300 544 755 or fill out the form on this page.

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