If someone publishes material about you or your business that causes others to think less of you, you may be able to claim compensation, particularly if the publication contains false statements that could damage your reputation. If a third party publishes such content, you may be able to establish a defamation claim. This article will outline how you can sue someone for defamation.
What is Defamation?
Defamation is the publication of false information that damages a person or small business’s reputation. Defamatory content can take many forms, including:
- written material;
- online posts;
- pictures; or
- verbal statements.
How to Establish a Defamatory Claim?
The defamatory material published must meet specific criteria to sue for defamation successfully. We explore these below.
1. The Material Must Be Defamatory
For material to be legally defamatory, the published material must contain at least one defamatory ‘imputation’. An imputation can come from a word or phrase and must:
- negatively affect your reputation;
- lower your value in the eyes of other people; or
- cause people to avoid you or your business.
2. The Defamatory Material Must Have Been Communicated to a Third Party
For content to be defamatory, the material must have been communicated to a third party. Additionally, the third party must have seen, heard or read the material. This might occur online, in person or even through art.
3. The Defamed Person Must Be Identifiable
A person does not have to be named explicitly in the defamatory material to be considered identifiable. A court will decide if the person is identifiable based on whether an ordinary reasonable person could ascertain from the published material who is being defamed.
4. The Harm Must Be Serious
In several states, you need to be able to demonstrate that a defamatory statement causes serious harm to your reputation. Whether or not the harm is serious is a matter that the court will determine.
Example
Say you run an online marketing business. A person pretending to be a customer falsely claims you have not delivered something on time and gives you a one-star review. This has resulted in a reduction in new business. You may be able to establish a defamation claim since:
- the review is online where multiple people can see it;
- it identifies your business;
- it has damaged your reputation; and
- your business has suffered severe harm as a result.
What Are Some Common Defences of Defamation?
Although you may meet the criteria above, you must consider that there are many defences against defamation. We outline some examples in the table below.
| Defence | Explanation |
| Justification | If you can prove that your communications are true in substance or not materially different from the truth, you can rely on this defence. |
| Honest Opinion | To establish an honest opinion defence, you have to prove that the communication was an expression of your opinion (rather than fact), that the opinion was a matter of public interest, and that it was based on proper material. |
| Public Interest | This defence aims to assist journalists and media organisations in publishing matters that are of public concern or interest without the threat of a claim. |
| Innocent Dissemination | If you publish something that is written or created by someone else and you can prove that you did not know that the material contained defamatory content, you may be able to rely on this defence. |
| Triviality | If you can show that the communication was trivial and unlikely to cause harm, then you may be able to rely on this defence. |
| Absolute Privilege | If you can demonstrate that you published the content in a way that attracts absolute privilege, then you can rely on this defence. |
Who Can Sue for Defamation?
Only individuals, certain not-for-profit corporations and corporations with ten employees or less can sue for defamation. A person seeking to sue for defamation has 12 months from the date of publication of the defamatory communication to claim the publisher of the material.
What is a Concerns Notice?
If you think you have a defamation claim, the first step is to issue a concerns notice. A concerns notice is a legal document that notifies a person or organisation that their publication has caused harm and is considered defamatory. The purpose of issuing a concerns notice is to encourage a resolution without resorting to legal proceedings. It allows the potential defendant to make amends and mitigate the potential legal consequences of their actions.
It’s now easier than ever to start a business online. But growing and sustaining an online business requires a great deal of attention and planning.
This How to Start an Online Business Manual covers all the essential topics you need to know about starting your online business.
The publication also includes eight case studies featuring leading Australian businesses and online influencers.
Key Takeaways
If someone publishes content about your or your business that makes others think less of you, you may be able to establish a defamation claim. However, to constitute defamation, you must be able to satisfy the court that the:
- material was defamatory;
- material was communicated to a third party;
- defamed person must be identifiable; and
- harm must be serious.
If you have concerns about any communication that could be defamatory, our experienced dispute lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
Defamation is the publication of false information which damages a person or small business’s reputation. Additionally, the information or communication must be published to a third person, identify the person or business and must harm the business’ or the person’s reputation in some way
Individuals, certain not-for-profit corporations and small businesses with ten employees or less can sue for defamation. Therefore, businesses with more than 10 employees cannot sue for defamation.
We appreciate your feedback – your submission has been successfully received.
