A look at defamation

Quite regularly there are high-profile cases where a celebrity or politician sues an organisation or an individual for defamation, where they believe a false statement has been made which harms their reputation.

While reputation is important for public figures, it is also incredibly important for everyday people in rural areas where reputation can make or break careers and small businesses.

In this article I will discuss what defamation is, the process to be followed prior to initiating a claim and how a claim of defamation can be defended.

Who can sue for defamation?

Any living person can sue for defamation. Most companies in Victoria cannot sue for defamation, however, some companies with fewer than 10 employees and not-for-profit companies are permitted to bring defamation actions. An individual associated with a company, such as the company’s director, can sue for defamation if they have also personally been defamed.

Publication

For the plaintiff to be defamed it must be proved that the defendant published material to a third party. ‘Publishing’ has a wide definition and includes printing in a magazine or newspaper, posting on social media or a verbal comment.

The test of whether the publication is defamatory can be summarised as being ‘is the publication likely to lead ordinary, decent members of the community to think less of the plaintiff?’.

Defences

Truth – Proving a truth defence is difficult and can lead to severe cost penalties when unsuccessful.

Fair comment and honest opinion – A defendant might argue the publication was fair comment or honest. For this defence to succeed the defendant must establish the publication was a comment – or opinion rather than a statement of fact – on a matter of public interest. The comment must also be considered ‘fair’, meaning the comment or publication expresses an opinion which any fair-minded person could honestly hold on the basis of the proven facts. The defence is defeated if the plaintiff proves the opinion was not honestly held by the defendant when the material was published.

Absolute privilege

Some publications are completely protected from defamation including anything said or done by members of parliament in the course of parliamentary proceedings and statements made in the course of court proceedings by judges, jurors, barristers, witnesses and parties.

Many other situations are protected by qualified privilege, where it is deemed that it is in the interest of society for people to communicate freely. These situations include giving information to police about a suspected offence and information between an employer and their employee concerning the business. Where qualified privilege exists, a plaintiff can only succeed in a claim for defamation where they can prove the defendant was motivated by malice in making the defamatory statement.

Pre-court procedure

Prior to initiating court proceedings, a plaintiff must send a document known as a concerns notice to the party who made the defamatory comment. This notice must be carefully drafted to meet the requirements under section 12A of the Defamation Act 2005, including where the defamatory comment-material was made, details of the comment-material, the meaning of the comment and details of the harm to reputation. The recipient of a concerns notice normally has only 28 days to voluntarily make an offer to make amends. This offer might include making an apology and paying the plaintiff’s costs. If an offer to amends is not received within 28 days then a plaintiff can issue proceedings.

Generally, apologies cannot be relied upon as an admission of liability for the purposes of a defamation claim.

Remedies

If a plaintiff is successful in a claim for defamation, they will be awarded damages – a sum of money – to compensate them for damage to their reputation. Where the defendant has acted in an unjustified way, such as refusing to apologise and repeating the defamatory statement after the plaintiff has complained, the plaintiff might be awarded aggravated compensatory damages.

Time limit

Generally, court action for defamation must commence within one year of the defamation, so it is important to obtain legal advice soon after you become aware of the defamatory conduct. • Patrick Smith is the principal of O’brien & Smith Lawyers. This article is intended to be used as a guide only. It is not, and is not intended to be, advice on any specific matter. Neither Patrick nor O’brien & Smith Lawyers accept responsibility for any acts or omissions resulting from reliance upon the content of this article. Before acting on the basis of any material in this article, we recommend that you consult your lawyer.