What Is Defamation?
Defamation occurs when a person publishes or communicates information that is untrue about someone else to other people, and it has the effect of damaging that person’s reputation.
Defamation can be quite serious. If someone has tarnished your personal reputation the harm done can change your relationships with friends and family, impact your income, business or livelihood, or limit the opportunities available to you. It is important to understand what your rights are and what options are available to you if this happens.
Who Can Sue For Defamation?
A claim for defamation can only be made by an individual person, a Not-For-Profit Organisation, or a company with less than ten employees.
Corporations cannot sue for defamation, however, they may have a claim for Injurious Falsehood.
In NSW, an individual who has died cannot have a claim brought on their behalf.
What Kind Of Conduct Can Be Defamatory?
Defamatory publications can be any kind of communication that has been published in some way.
However, it must be material that has been published or communicated to at least one person other than the defamed. For example, a person cannot be defamed by a letter that has only been seen by them and is not published to a wider audience.
The types of ‘publications’ covered by Australian Defamation Laws are very broad and can include, but are not limited to:
- Verbal or spoken words – during a radio broadcast, television program
- Written or printed material – websites, blogs, emails, social media posts
- Online reviews
- Drawings and cartoons
- Paintings and artwork
- Poetry and songs; and
- Live theatrical or musical performances.
What Steps Can I Take?
Often the situation can be remedied easily by:
- Directly addressing the person responsible;
- Sending a letter (also known as a Concerns Notice);
- Demanding an apology or retraction; or
- Contacting the person or organisation responsible for moderating content such as Facebook or Google.
We can assist you at this stage by drafting correspondence, negotiating with relevant persons, or generally advising on strategy. These options are usually preferable to commencing legal proceedings as, in most cases, we can obtain a positive outcome without the cost, time, and effort involved with going to court.
What Is A Concerns Notice?
A Concerns Notice is essentially a letter notifying the publisher of the alleged defamation and asking the publisher to take down the material and make amends. You must send a written concerns notice before commencing proceedings.
There are four key elements of a Concerns Notice:
- The notice must be in writing;
- The notice must identify where the publication can be accessed – a Facebook page or a webpage link;
- The notice must notify the publisher of the ‘imputations’ (defamatory meanings) that can be derived from the publication; and
- The notice must inform the publisher of any harm that has been caused, or is likely to be caused, as a result of the publication.
The individual receiving a Concerns Notice is provided 28 days to make an “offer to make amends”. You can only sue the person after 28 days of sending this notice, or if the person who you sent the notice to asks for more information, 14 days after you give that extra information to the person.
Going To Court
Unfortunately, sometimes it may be necessary to consider legal action. Generally, an individual, referred to as the Plaintiff, will have a claim in defamation if they can show the following:
There must be a communication of untrue information to someone other than the person being defamed. This can be verbal, in writing, or even without using words. Information can be communicated in a range of manners including direct conversations, newspaper articles, social media posts, television broadcasts, cartoons, artworks, and performances. Under Australian Defamation Law, these are all considered ‘publications’ and the person who communicated the information is considered the ‘publisher’.
The communication must identify the Plaintiff.
The Plaintiff does not need to be named specifically. A communication can still be considered defamatory if a person receiving the communication can identify the Plaintiff based on extrinsic or well-known facts.
This also applies if the Plaintiff is not the intended subject of the communication but is, reasonably, identifiable by the publication. For example, if a person’s photo is incorrectly used in a news article referring to a criminal or suspect they may have a claim even if the article did not mean to refer to that person.
3. Defamatory Meaning
The publication must also convey a defamatory meaning. This is considered in two steps.
Firstly, what is the meaning that can be understood by the publication. This is referred to as an ‘imputation.’ A publication can have multiple imputations; which may be explicit, implied, or reasonably inferred. For the purpose of Defamation law, it does not matter what the publisher intended to convey or whether the imputation was accidental. Defamation law is only concerned about the imputation(s) that was in fact conveyed by the publication.
Secondly, whether an imputation arising from the publication defames the Plaintiff. There is no precise test to decide whether a meaning is defamatory. The Court will consider whether the imputation is likely to or has the capacity to lower the reputation of the Plaintiff when considered by ordinary, reasonable members of society.
In deciding this, context matters. For example, it is not inherently defamatory to suggest two people are romantically involved. However, it could be defamatory if either of those people are known to be married, or a priest, or a child.
Defences To Defamation
Not all imputations or meanings that are negative, unkind, or unfavourable to a Plaintiff are considered defamatory. If a statement is true, or substantially true, then it is not defamatory even if it is negative. For example, it may not be considered defamatory to call someone “violent and abusive” if they have in fact been convicted of violent crimes. An imputation must be false to be defamatory.
On the other hand, not every lie or falsity about an individual is defamatory. It should be a lie that rises to the relevant threshold. For example, it would not necessarily be defamatory to mistakenly refer to a medical doctor as a nurse, unless it is suggested that they were therefore not qualified to perform their job.
Mere insults or slurs aren’t inherently defamatory. Generally, statements such as calling someone “ugly” or “stupid” will not be considered defamatory. These will usually be taken as trivial or expressions of opinion.
The defences available to defamation include:
- Justification – there is substantial truth in the statements
- Contextual truth – no harm was caused when taken in context of the whole publication
- Honest opinion – it was an honest opinion based on proper materials and related to a matter of public interest
- Innocent dissemination – did not know the material was defamatory and was not negligent
- Triviality – the other party is unlikely to suffer harm
- Absolute privilege – publication was made in an Australian court/tribunal or in Parliament
- Qualified privilege – when you tell someone something they have an interest in knowing about and act reasonably while doing so
- Public interest – concerns a matter of public interest
- Published in a public document, in a ‘fair report of a proceeding of public concern’ or in a scientific or academic peer journal
How Long Do I Have To Claim?
If you wish to make a claim for defamation, you must commence proceedings within 12 months from the date of publication. The Court may extend this period but only in very exceptional circumstances – for example, you were unaware of the publication until after the limitation period.
Importantly, online content is considered to have been ‘published’ each time it is viewed, meaning defamation proceedings for online content can potentially be brought many
This strict time limit means that if you feel you have been defamed it is crucial that you seek legal advice to determine whether there is a claim and what options are available.
If you have been affected by someone’s lies or if you are being accused of defamation, speak to one of our defamation lawyers at Tom Howard Legal and we can assist you with deciding the appropriate course of action.