Summary
- Defamation occurs when false material is published to a third party that causes harm to a person’s reputation, and can arise through written or spoken communications including print, online posts, emails, social media comments, phone calls, and video conferences.
- For material to be defamatory, three requirements must be met: the material must have been published to a third party, the subject must be sufficiently identifiable to a reasonable person, and the material must actually damage the person’s reputation or hold them up to ridicule.
- Comments attacking personality, character, beliefs, personal choices, or mental stability can be defamatory, but comments regarding physical appearance or attributes are not considered defamatory under Australian law.
- This article is a guide to defamation law for individuals and businesses in Australia, explaining what constitutes defamatory material and the requirements that must be met to bring a claim.
- LegalVision is a commercial law firm that specialises in advising clients on defamation and dispute resolution matters.
Tips for Businesses
Seek legal advice before making a defamation claim, as litigation costs are significant and defences available to the other party may affect the viability of your claim. Monitor online platforms, review sites, and social media for potentially defamatory content about your business. Document all instances of potentially defamatory material, including dates and the audience who may have seen it, to support any future claim.
Defamation occurs when false information is published about a person in a way that damages their reputation, and it can arise in a wide range of contexts from social media posts to private emails. Understanding what the law requires before bringing a defamation claim is essential. This article explains what can be considered defamatory and the key requirements that must be met under defamation law.
What Can Be Defamatory?
There are a variety comments which can be defamatory, including those that attack someone’s:
- personality;
- character;
- beliefs;
- personal choices; or
- mental stability.
For the material to be defamatory, it needs to be capable of causing other people to, ultimately, think less of you. Comments regarding physical attributes or appearance are not defamatory.
Written or spoken comments can be defamatory. The comments can be in print, online, or even in a personal email or social media comment. Whilst many posts and publications can be defamatory, they will need to meet the threshold of requirements set out by defamation law. Let us explore these requirements are below.
Published Material
However, it is important to note that there is no requirement for the material to be in writing. Defamatory comments can be shared with a third party during a phone call or video conference.
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Person is Identifiable
The second requirement is that the material has sufficiently identified you. The material need not strictly identify you by name, though it makes the element easier to prove. Ultimately, the law will require that an ordinary reasonable person be able to determine that the material is referring to you.
Damage to Reputation
Finally, for material to be defamatory, it must genuinely be defamatory. This means the material must lower the person’s reputation or hold them open to ridicule. The position the law takes on this test is by determining what a reasonable person would infer from the comments and where, on this basis, it is likely to damage the reputation of the person the material relates to.
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Key Takeaways
In summary, defamation is a complex area of law. Even where material may be defamatory, there may still be defences that the offending party may make. Thus, if you are considering whether or not you should make a claim for defamation, you should speak to an experienced lawyer first. This is because the costs involved in making a claim for defamation are quite high.
If you have concerns about material that could be defamatory, LegalVision provides ongoing legal support for all businesses through our fixed-fee legal membership. Our experienced disputes lawyers help businesses manage contracts, employment law, disputes, intellectual property, and more, with unlimited access to specialist lawyers for a fixed monthly fee. To learn more about LegalVision’s legal membership, call 1300 544 755 or visit our membership page.
Frequently Asked Questions
Defamation is the publication of any false information causing harm to a person’s reputation. If someone posts or publishes false information about you that causes damage to your reputation, you may be able to seek compensation for losses resulting from their posts or publication.
There is no prescribed manner in which the false information or defamatory statements must be made. It can include everything from statements made in a phone conversation, emails shared to one or more third parties, social media posts and Google reviews.
No, comments regarding physical attributes or appearance are not defamatory. Defamatory material must be capable of causing others to think less of you based on personality, character, beliefs, personal choices, or mental stability.
Courts apply a reasonable person test, determining what an ordinary reasonable person would infer from the comments and whether those inferences would likely damage the reputation of the person the material refers to.
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