Taking legal action against someone for hurting your reputation is a big step.  You should first get online legal advice and see if there is some other way to remedy the damage they have caused. However, defamation can cause genuine harm to you or your business – see below for LegalVision’s introduction to understanding defamation law.

What is the legal definition of defamation?

Defamation is the publication of false information which hurts a person’s reputation or leads them to be ridiculed, shunned, avoided or despised.

What needs to be proven in a defamation case?

There are some basic legal and factual elements which need to be proven for a defamation case to succeed:

  • It must be communicated or published to a third party
  • The information must be defamatory
  • The information must be about the plaintiff
  • There is no lawful excuse for publishing the information

How do you prove something is defamatory?

Defamation can be blatant lies and it can also be false representations – known in defamation as an ‘imputation’.

In a defamation case the onus is on the plaintiff to prove their reputation has been damaged by information being communicated or published.  The legal test used to determine whether a statement is defamatory is whether in the eyes of a “reasonable person” the plaintiff’s reputation has been lowered.

This is the objective test utilised by courts in assessing damage.

Who can sue for defamation?

Only individuals, certain not-for-profit corporations and corporations with 10 employees or less are entitled to sue for defamation.

When must a person who has been defamed sue?

A person who has been defamed has 12 months from the date of publication of the defamatory material to commence proceedings against the publisher of the material.

What are the defences to defamation?

There are many defences to defamation.  Actually many, many things which are published are defamatory, but the publisher is entitled to rely on a defence to defamation.  These include:

  • Truth: Also known as ‘justification’ – if the defendant can prove that the defamatory material was substantially true then they can defeat the case.
  • Contextual Truth: This is basically the truth defence, but applied to imputations.
  • Privilege: Some material is protected by the law – such as when you are giving evidence in court or a tribunal or publishing to a limited group who have a genuine interest in the subject matter of the publication.
  • Public Document:  It is not defamatory if you simply republish material which was available in a public document.
  • Opinion:  In order to succeed in this defence you will need to show that:
    • 1. It was obvious to the third party that you were merely expressing your opinion;
    • 2. It was a matter which is in the public interest; and
    • 3. It was based on true or privileged material.
  • Triviality: If you can show that the defamation was trivial then you may succeed in having the matter struck out.

How much money can I get if I sue for defamation?

It depends on the extent of the damage done and in some cases parties negotiate an out-of-court settlement or apology.  Damages are currently capped at $355,500.00.

What should I do if somebody has defamed me or I think I have defamed someone else?

Seek online legal advice from LegalVision.

 

Lachlan McKnight

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