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Defamation is a term that many people use, but do not necessarily know when it is happening to them. Is a particularly negative review on Google defamation? What about your employee that is posting inflammatory comments about your business on social media? It is important to protect yourself from defamation, and to avoid defaming others. Therefore, it is critical to understand defamation and when it occurs.

In Australia, 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. Overall, if you think you might have a defamation case, we recommend seeking legal advice before the problem becomes worse.

The following article will help you determine if what you are experiencing is defamation and how you should remedy it.

What Is Defamation?

In theory, defamation can be any publication that could damage someone’s reputation or public image. However, there is no exact definition of defamation under the law. So, you should consider that defamation may be spoken, written or communicated in some other form of express publication. This includes digital media posts on platforms such as Facebook or Twitter.

Another important factor to consider is that while defamation law has become far more uniform than it once was, there are subtle differences in each state.

What Is Not Defamation?

Not every negative comment is going to constitute defamation. Some examples of non-defamatory content includes instances where the:

  • comment is true in substance (note that it is not sufficient that the commenter believed it to be true, it must objectively be true);
  • information is a matter of public interest;
  • comment is a fair and honest opinion;
  • individual in question innocently disseminated the material; or
  • damage to your reputation is objectively trivial.

This is not an exhaustive list, and as you can see, many of these scenarios are difficult to quantify. This is another reason why you should seek legal advice before alleging defamation.

Who Can Bring a Claim of Defamation?

An individual or a small business can initiate defamation claims. However, if you are unsure whether the alleged defamation is sufficiently damaging to warrant a claim, you should check with a commercial lawyer to better understand. 

Can a Company be Defamed?

Certain conditions must be met to warrant bringing a claim for defamation as a company. They include that the:

  • total number of employees is less than 10; or
  • 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).

Individuals within a company, such as officers or directors, can also sue for defamation if the defamatory material has sufficiently identified the employees. Companies with more than 10 employees that wish to sue for defamation will usually rely on a separate but very similar cause of action known as injurious falsehood.

What if Defamation Occurs Overseas?

With the inception of technology, it is becoming more and more challenging for an individual or a business to protect their reputation against attacks from outside of Australia. This raises a very common question. How does the law treat claims of defamation that occur in other jurisdictions worldwide, but are based on Australian individuals or businesses?

The current position in Australia is 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 expected, in some cases, a business will be liable for comments and posts by visitors to the page. Because of this, it is important to stay on top of the content that others post publicly on your business’ Facebook page.

Time Limits on Defamation Claims

Under Australian law, the person or business claiming defamation must make a claim within one year of the alleged defamatory publication. However, this is subject to vary in some cases.

Key Takeaways

Overall, defamation is a tricky area of law. Unfortunately, many individuals and businesses that are subject to defamatory material will have to navigate this law. Before you allege defamation, consider the following questions:

  • Has your reputation been substantially damaged by the material, and is the material based on false information?
  • When and where was the material published, and do your customers or employees have easy access to the material?
  • Who or what is the subject of the defamatory material? Is it you, your business or someone specifically working for you?

Finally, once you considered the above criteria, get in touch with a commercial lawyer to discuss the material and whether you have a defamation case. If you have any questions about whether you or your business has been defamed, contact LegalVision’s disputes and litigation lawyers on 1300 544 755 or fill out the form on this page.

Frequently Asked Questions

How do I protect myself from defamation that occurs overseas?

If an overseas individual has defamed you or your business, and the publication is available in Australia, the Australian courts will be able to hear the case.

Can defamation occur on my social media pages?

In some cases, a business is liable for comments and posts by visitors to the page. Therefore, you must be diligent in monitoring your social media presence for defamation.

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