Have you ever had someone talk badly about you or your small business? Are you aware of your rights not to be defamed? Under Australian Law, it is defamatory to seek to damage someone’s (or, subject to certain exceptions, their business’) reputation by making statements in a public context that are damaging or insulting. It is our recommendation to seek legal advice if you, or your small business, have been defamed.

What is defamation?

While there is not an exact definition of defamation under the law, any publication that could damage someone’s reputation or public image may be considered defamatory.

It’s important to keep in mind that defamation may be spoken, written, or communicated in some other form of express publication, even Facebook posts or tweets can be deemed defamatory.

Who can bring a claim of defamation?

An individual, or a small business can initiate defamation claims. If you’re unsure whether the alleged defamation is sufficiently damaging to warrant a claim, speak with a commercial lawyer to gain a better understanding of where you stand under the law.

How does a company get defamed?

There are certain circumstances that warrant bringing a claim for defamation as a company, including the following:

  • The total number of employees is <10; or
  • The company is a not-for-profit organisation, i.e. it does not have as one of its objectives to gain some financial profit for its members.

In addition, individuals within a company, such as officers or directors, can also sue for defamation if the employees have been sufficiently identified. Companies that have more than 10 employees and wish to sue for defamation will usually rely on a separate, but very similar, cause of action known as injurious falsehood.

International Defamation and the Law

With the advent of technology, it is becoming increasingly difficult for an individual or a business to protect their reputation against attacks that come from outside of Australia. It raises the question;

how does the law treat claims of defamation that occur in other jurisdictions around the world, but are based on Australian individuals or businesses?”

Although this is not a well-established proposition, the current position seems to be that, when the publication is available in Australia, the Courts may hear the matter.

Social Media and Defamation Law

Many individuals and businesses use social media to express their opinions about other individuals and businesses. As you would expect, in certain cases, a business will be liable for the comments and posts of its visitors to the page. For this reason, it is important to stay on top of the content that is being posted publicly on your business’ Facebook page.

Time Limits on Defamation Claims

Under current Australian Law, the person or business claiming defamation must make the claim within one year of the alleged defamatory publication, although this may vary in some cases.

Conclusion

For advice on how to make a claim of defamation, you should seek legal advice from a commercial solicitor. LegalVision will provide you with advice at a fixed-fee, so that you know what you’re paying from the outset.

Emma Jervis

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