If someone has published something about you that is not truthful and has damaged your reputation, you may be able to sue them for defamation. Defamation is the publication of materials that is not factual and has a negative impact on the reputation of an individual. This article will go into detail about:

  • what defamation is; and
  • how to bring an action for defamation in Victoria.

What is Defamation in Victoria?

Defamation is the publication of material that negatively impacts or affects the reputation of a person of which the material is about. For a court to find a claim of defamation, the material must be:

  • a communication or publication;
  • made to a third party;
  • defamatory; and
  • able to identify the defamed person.

There was once a distinction between two different types of defamationlibel and slander. Iibel was the name given to defamation of an individual in the form of writing. Further, slander was defamation of an individual verbally, through speech. However, this distinction was abolished when Australia adopted uniform defamation laws in 2006. This means that defamatory publication or communication can include:

  • writing;
  • print media;
  • online media;
  • drawings/cartoons; and
  • speech. 

Before you bring a claim of defamation against another individual, you should be able to meet all the requirements.

Bringing an Action for Defamation in Victoria 

If you think someone has defamed you, you will need to bring an action for defamation within one year of its publication. As the aggrieved person, you can bring a claim against the publisher to recover compensation for harm to both your reputation and feelings. However, the amount of money you may claim is capped in each State. In Victoria, your claim is capped at $407,500. You can also sue for further special damages if you can calculate any specific financial losses you have suffered as a result of the defamation.

It is also important to be aware that defamatory statements may be published in more than one jurisdiction.

For example, a defamatory statement may be made in a national newspaper. The issue then becomes which jurisdiction should you bring the claim for defamation in. The law that applies will be the jurisdiction with the closest connection to the harm caused by the publication of the defamatory material. 

Defences

If you have brought a claim of defamation against another individual in Victoria, they may be able to use a defence. There are a number of defences available to the publisher under the Defamation Act, including:

  • justification;
  • contextual truth;
  • fair reporting of proceedings of public concern; and 
  • honest opinion. 

It will also be a defence if the publisher in question has made a reasonable offer to make amends but you have rejected the offer. 

For example, if they have offered to publicly apologise and remove the content from their publication and you have rejected this, this may be a defence. In deciding whether the offer was reasonable, the court may consider any relevant factors, including the: 

  • time elapsed between the publication; and
  • offer to make amends.

Apologies

When a publisher receives a defamation notice of complaint, they have 28 days to voluntarily make an offer of amends. The publisher will need to follow a particular process which could include actions, such as: 

  • agreeing to processes to remove the material; 
  • publish a publication; or 
  • offer to pay the aggrieved expenses. 

If the publisher makes what the Court considers a reasonable offer to make amends, and you reject it, then the publisher has established a defence to the defamation claim.

Key Takeaways

You should be satisfied that each of the elements of defamation can be established before considering bringing a claim against the publisher. If you think someone has published defamatory material about you in Victoria or you have any questions regarding bringing a defamation claim in Victoria, contact LegalVision’s disputes lawyers on 1300 544 755.

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