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If somebody publishes false comments about you that negatively affect your reputation, you might wish to consider bringing a defamation claim. Before doing so, however, it is essential to know what makes a good defamation claim. Defamation disputes are often lengthy. Accordingly, you will need to decide whether it is in your best interests to pursue one. Below, this article will outline what you will need to build a strong defamation case.

What Is Defamation?

Defamation is the communication or publication of false content to third parties about you, which could be detrimental to your reputation.

For a successful defamation claim, you must prove the factors set out below. 

Publication

First, 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 of comments by word of mouth, proving this is more complicated. The publication can occur in different forms and there is no requirement for the material to be written.

For example, the defamer could publish defamatory comments in a magazine or on an online blog. 

Identification

Next, you must prove that the defamatory material sufficiently identified you. It is not always necessary for the defamer to use your name. However, the law requires that an objective person would understand that the comments are about you.

For example, the defamer could refer to you using a nickname that many people would recognise to be you. 

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 are unlikely to be defamatory. 

For example, somebody stating online that your favourite colour is green when it is blue is unlikely to be defamatory, even if it is incorrect. This is because nobody would think less of you because of your favourite colour.  

Information Was Disclosed to Another Person

Finally, you must be able to demonstrate that the defamer shared the defamatory comments or content to another person.

Are the Comments Defamatory?

The comments or material must be defamatory to damage your reputation. This means that the comments or material would leave you open to:

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

Essentially, the defamatory material must be capable of causing people to think less of you. However, the comments or content 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 (however, it certainly would be rude!).

Online Defamation

The interconnectedness of the internet and the ability for individuals to navigate between websites through hyperlinks can pose difficulty in identifying the author of defamatory material. Therefore, it can be tricky to distinguish between the original author of defamatory material and those who happen to be sharing or hyperlinking the same material. If the original author has published the defamatory material about you on their website, it may be easier to identify them as the offender. However, many people use pseudonyms online instead of their real names. This poses difficulties in identifying the actual defendant.

The difficulty arises where third parties are sharing or hyperlinking the defamatory online content within other websites.

For example, can these third parties be liable for defamation by merely sharing the content? Unfortunately, this is not always straightforward. The court must take into consideration the facts of each case.

Some factors the courts have considered in previous cases include whether the third party website:

  • endorsed the defamatory content on the original author’s website;
  • drew specific attention to the defamatory material; or
  • ‘published’ the defamatory material by hyperlinking the website that contains the material.

Are You Able to Bring a Claim?

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

If someone directed defamatory comments towards your business, you can only bring a defamation claim if you have fewer than ten employees. If someone has made false comments about your business and you have more than ten employees, however, 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 defamer will be able to rely on a defence. Some of the most common defences to defamation are set out below. 

Truth

If the defamer can prove that the comments were substantially accurate, 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 or material is true.

Absolute Privilege

This defence arises if the defamer can demonstrate that they published the matter in the course of proceedings subject to absolute privilege.

For example, these circumstances might include when giving evidence in court or a tribunal.

The ‘defamatory’ matter will still be protected in this instance, even if the content was false and malicious.

Qualified Privilege

The defence of qualified privilege arises when the defamer has a legal, social or moral duty to publish the matter to a specified group who have a genuine interest in receiving the publication. 

For example, the communication between an employer and an individual providing a job reference for a prospective applicant could be protected by qualified privilege. 

A defamer cannot rely on this defence if you can prove that the defamatory matter had malicious intent. 

Public Document 

It is not defamatory if you republish material which was available in a public document.

For example, a public document might be 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 defamer formed the opinion on substantially true material. 

Triviality

Finally, 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 defamation claim. 

LegalVision cannot provide legal assistance with this topic. We recommend you contact your local law society.

Frequently Asked Questions

What is defamation in Australia?

Defamation is the communication or publication of false content to third parties about you, which could be detrimental to your reputation.

What comments count as defamatory in Australia?

The comments or material must damage your reputation to be defamatory. However, the comments or content will not be defamatory if it only concerns your physical appearance or other attributes you cannot control. 

Can something be defamatory if it is true?

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

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