Social media platforms Facebook, Twitter, Instagram and Pinterest have redefined communication. What once was a passing remark to a colleague or friend in private is now publically available for everyone to read, interpret and share. A simple screenshot is now all it takes to capture a comment. This isn’t a problem until someone’s comments could be construed as defamation. Below, we set out what is defamation, what constitutes defamatory matter and the defences.

What is Defamation?

The Defamation Act 2005 (NSW) (the Act) and the common law governs defamation. There is also scope to bring an action for defamation under the Australian Consumer Law. Communication is considered defamatory if it tends to:

  • Disparage a person;
  • Cause others to shun or avoid a person; or
  • Subject a person to hatred, ridicule and/or contempt.

Ultimately, communication will be considered defamatory if it causes ordinary, reasonable members of society to think less of the aggrieved person (Hewitt v West Australian Newspapers Ltd (1976) 17 ACTR 15). The test is objective and determined by reference to general community or social standards, and not according to the subjective attitudes of particular recipients (Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500).

Who Can Bring a Defamation Claim?

Under section 9 of the Act, only individuals, certain not-for-profit corporations and corporate entities with fewer than ten employees can bring a defamation claim.

An allegedly defamed individual has 12 months to bring an action from the date of publication of the defamatory material (see section 14B of the Limitation Act 1969 (NSW).

What are the Elements of Defamation?

An aggrieved party to establish a defamation claim must prove the following:

  • The communication has been published; and
  • To a third party; and
  • Identifies or is about the aggrieved party; and
  • Contains defamatory matter.

Publication 

Publication simply refers to the communication of defamatory matter and can occur by the following means:

  • Spoken words;
  • Audible sound;
  • Written or printed materials;
  • Drawings;
  • Photographs;
  • Signs;
  • Gestures;
  • Broadcasts;
  • Telecasts;
  • Live or theatrical performances;
  • Displays.

Comments and posts on social media clearly fall within the definition of publication.

Identifying a Third Party 

Identifying an aggrieved party by their name is sufficient. Where a publication or communication does not explicitly name the individual, the person will need to show that someone reading the publication would identify the aggrieved party the subject of the defamation (Cross v Denley (1952) 52 SR (NSW) 112 & Nicholson v Seidler (1990) 5 BR 363).

What are the Defences to Defamation?

Defences to an allegations of defamation include:

  1. Justification or truth;
  2. Absolute privilege;
  3. Qualified privilege;
  4. Honest opinion and fair comment;
  5. Triviality;
  6. Innocent dissemination;
  7. Apology and offer to make amends; and
  8. Consent.

What is a Concerns Notice?

An aggrieved party can issue the publisher of a defamatory matter with a concerns notice under section 14 of the Act. A concerns notice is a formal document which sets out, in writing:

  • The defamatory material;
  • An adequate description of the circumstances surrounding the defamation; and
  • A request for the publication of a correction, payment of expenses the aggrieved party reasonably incurred as a result of the defamatory matter, and possibly compensation.

Once served, a concerns notice is open for acceptance for twenty-eight days. The aggrieved party has 14 days to reply to any counter-offer the publisher makes and if accepted, can no longer enforce any action for defamation (section 17 of the Act). Apologising, but otherwise failing to agree to the concerns notice’s terms and conditions, doesn’t constitute the publisher’s admission of liability.

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If you are a publisher and have any questions about defamatory matter, or would like to know more about your rights, let our litigation lawyers know.

Vanja Simic

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