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Defamation is the publication of false information which damages a person, or small business’s reputation. To successfully sue for defamation, the information published about you has to meet certain criteria, including:

  • that the information or communication was published to a third person; 
  • it identifies the person or business; and 
  • it is defamatory, meaning the information must lower the person or business’s reputation or hold them up for ridicule.

An example might include an online review of your small online marketing business. A person pretending to be a customer may claim you have not delivered something on time and given you a one-star review. A claim for defamation is available, since:

  • the review is online where multiple people can see it;
  • it clearly identifies your business;
  • it lowers your reputation. 

Although you may meet the criteria above, you have to consider that there are many defences to defamation. The most obvious one being if the information or online review is factually true, then it will not be defamatory. When raising a defence, the burden of proof is with the defendant or person who makes the defamatory comments. This article will explain who can make a defamation claim, how to establish your claim and the defences available to you.

Disclaimer: This article deals with defamation law in Australia generally. There have been recent changes to the Defamation laws in NSW which haven’t been dealt with specifically in this article.

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 make a claim against the publisher of the material.

When the communication has been published online, every time a person downloads the publication, it can be considered as being republished. This creates some uncertainty as to when the 12 months actually commences when dealing with online publication or communication. 

How to Establish a Defamation Claim?

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

The Information or Communication was Published to a Third Person 

The information must be published to and viewed by, a third party. Situations that are not defamatory, include:

  • if you and another person have a private argument with no one else around; or
  • if you and another person send defamatory messages directly to, and only to, each other.

However, if one other person downloads, reads or views the communication, it can be damaging to your reputation. The more public it is, the more damage it does to your reputation. A court will consider these factors when assessing the amount of compensation you can receive. 

It Identifies the Person or the Business

It has to be clear to the average person that the defamatory communication is about you or your business. In examples where defamatory comments clearly name you or your business, this is not an issue. However, there are instances where the identity of the person or business is not explicit within someone’s comments. If a third party viewing the communication can determine who the comments are about, that is enough. 

For example, consider you make a post on Facebook describing the chicken shop on the corner of your street and comment that it gave you food poisoning. If your neighbour, reading your post,  can understand the exact chicken shop you are referring to, you can be liable for the defamatory comments. It is irrelevant that you did not explicitly say “Joe’s Chicken.”

It is important to remember that the law uses an ordinary reasonable reader/listener/viewer in determining whether the communication is defamatory or not. You might personally consider your statement to be a harmless joke. However, the judge or jury may decide that the ordinary reasonable person would think it is a defamatory statement.

What are the Defences to Defamation?

There are many defences to defamation, making this area of law very complex. Some of the available defences include: 

Truth/JustificationIf you can prove that your communications are true in substance or not materially different from the truth, you can rely on this defence.
Honest OpinionTo 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 it was based on proper material.  
Qualified PrivilegeSome 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.
Innocent DisseminationIf you publish something that is written or created by someone else and you can prove that you didn’t know that the material contained defamatory content, you may be able to rely on this defence.
TrivialityIf you can show that the communication was trivial and unlikely to cause harm, then you may be able to rely on this defence.

Key Takeaways

Defamation is a very complex area of law and can be very costly to pursue. Before you plan to sue someone for defamation, consider whether there is some way to ask the person to remove the defamatory material first.

After exhausting all these avenues, you may want to consider making a defamation claim. If you have concerns about any communication that could be defamatory, get in touch with LegalVision’s disputes resolution lawyers on 1300 544 755, or fill out the form on this page.


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