Defamation
Defamation is when someone has been defamed if their reputation has suffered serious harm following the publication of material that describes or depicts the victim in a negative light, and that this publication was unjust in nature or not made in the public interest.
Publication, for the purposes of defamation law can include speaking, writing, drawing, photography and blogging.
For defamation to have occurred, the victim does not necessarily have to have been mentioned specifically by name. Defamation may also occur accidentally, such as when a publication was made without the intention of causing harm to anyone’s reputation.
There are legitimate defences for defamation, and those accused of defamation in court may be able to defend themselves by proving that the information they published is in fact true, or otherwise in the public interest.
If you wish to sue for defamation, or you are faced with a defamation case yourself, it is important that you obtain legal advice to ensure that a satisfactory outcome is achieved under the circumstances.
What is defamation?
Defamation refers to the communication or publication of material which negatively affects the reputation of another entity or individual causing serious harm in accordance with section 10A of the Victorian Defamation Act 2005. The defamatory communication may occur as the result of a deliberate and unjustified attack on the reputation of another person or organisation, or it may occur accidentally, without intent to cause harm.
Under the Defamation Act 2005, defamation is unlawful and constitutes grounds for legal action. The function of the Defamation Act 2005 is to uphold the good reputation of individuals and organisations by creating a deterrent to unjust defamation as well as providing compensation to those who have been defamed.
Traditionally, there are two types of defamation:
- Slander – defamatory communications that exist in transient formats, such as spoken words.
- Libel – defamatory communications that have been published in a more permanent format, such as photos or other visual media, writing etc.
Under the Victorian Defamation Act 2005, as well as defamation legislation in other states, there is no longer a legal distinction between libel and slander. Activities defined as libel and slander under previous acts are now collectively known as defamation.
There are strict time limits involved when making a defamation claim. You should seek legal advice as soon as possible upon becoming aware that you may have been defamed.
Communication is defamatory when:
- It has damaged, or is likely to damage, the plaintiff’s reputation by causing them to be hated or ridiculed;
- It is likely to result in the plaintiff being shunned, shamed, or avoided;
- It is likely to lower the plaintiff’s standing in the eyes of reasonable individuals;
- It is likely to lower the plaintiff’s standing in the eyes of reasonable individuals;
- The harm to the plaintiff’s reputation is serious.
Defamation has occurred when:
- Defamatory communication has been made/published to a third party;
- This communication concerns or identifies another person or entity (the plaintiff in a defamation case);
- The communication or publication of the defamatory content occurred without lawful excuse.
If I am accused of defamation, what must be proven for me to be found liable?
If the plaintiff is able to demonstrate that the above conditions are true in a defamation case against you, you will be liable. More details about these conditions can be found below.
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Communication/publication
You must have first published or communicated something to be liable. These words are broadly defined for the purposes of defamation, basically to include any display of communication, whether visual, written, or verbal. Commonly, defamatory communication occurs in mainstream media, such as newspaper articles or radio broadcasts, or the displaying of signs for example. For defamation to have occurred, only a single person other than the communicator and the person being defamed has to have witnessed the communication.
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Defamatory material
The plaintiff must be able to demonstrate that the communication or publication contained defamatory material. This may include material that serves to seriously harm the reputation or esteem of another entity or individual. Such material may include blatant lies, false representation, or unjust speculation. This must be published in such a way that seriously harms the plaintiff’s reputation in their area of employment or residence, or in the case of an organisation, their primary area of operation. For defamation to be proven, the plaintiff’s reputation must have been lowered in the eyes of reasonable people in the general community. With this in mind, it is not advisable to publish allegations or criticism that can not be justified, or that are not in the public interest.
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The plaintiff
The plaintiff has suffered defamation if the published material identifies them. This identification may be direct, such as by title or name, or indirect, through the provision of other information that would cause a reasonable person to associate the material with the plaintiff. Usually, only individuals can be defamed. Under section 9 of the Victorian Defamation Act 2005 , groups cannot be defamed, nor can many corporations, unless they are non-profit or employ less than 10 employees.
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Absence of a lawful excuse
If you are found to have published or communicated the alleged defamatory material with a lawful excuse, you are not liable for defamation. Examples of such excuses can be found below under the ‘defences’ section.
Who can sue for defamation?
Living individuals may sue for defamation, as can entities such as non-profit organisations or corporations employing less than 10 people. Corporations or organisations suing for defamation must demonstrate that they have suffered serious harm which has caused or is likely to cause the corporation serious financial loss. Under the Victorian Defamation Act 2005, an individual or entity wishing to sue for defamation must do so within one year of the defamatory material being published. If circumstances meant that it was unreasonable for the plaintiff to commence litigation within the 12 months, extensions of up to three years from the date the defamatory content was published are available.
Who can be sued?
Anyone who participated in, authorised, or repeated the publication of defamatory material is liable for defamation, subject to the defences below.
Defences
If you are found to have published or communicated defamatory material, you may be able to demonstrate that one of the following defences applies, therefore ensuring you are not liable for defamation:
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Opinion
Under section 31 of the Victorian Defamation Act 2005, an opinion that is honestly held, based on factual material that is stated in the communication, and that is made regarding current affairs or matters of public interest, does not constitute grounds for defamation. Opinions may be stated as observation or criticism, not as statements of fact. Reasonable opinions must be based on fact, and reference factual material when published.
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Truth/Contextual Truth
Section 26 of the Act states that substantial truth constitutes a defence against claims of defamation. Under section 26 of the Act, contextual truth refers to a situation where the plaintiff is affected by a number of comments within a defamatory publication. To avoid liability, the defendant has to show that the defamatory imputations of which the plaintiff complains do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations. Proof of the facts is required to establish this defence, however, it is not required that the publication be proven to be in the public interest if the publication is substantially truthful.
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Public Document
A public document is one that is published by the government, or one of its branches (such as a court or tribunal). The content of these public documents can be published without a risk of creating a liability for defamation, unless the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.
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Fair Report
If the defendant has published a balanced and fair report of any proceedings that are of public concern, they may raise this as a defence against a defamation claim brought against the report.
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Innocent Dissemination
If the defendant is found to have distributed defamatory matter merely as an employee or agent and they did not know or ought reasonably to have known that the matter was defamatory, they are defended from being liable for defamation, provided their lack of knowledge was not due to any negligence on their part. This defence usually applies to distributors such as internet service providers.
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Qualified Privilege
A defendant who communicated or published something to a third party may be defended from any liability by qualified privilege protections under the Act if they believed on reasonable grounds, at the time of the communication or publication, that the third party had an interest or apparent interest in receiving that information. For example, providing an employment reference may constitute a circumstance where you communicated defamatory material but may be protected by qualified privilege. This defence does not apply if the comments made in the communication are malicious in nature. Only comments that are reasonable under the circumstances are protected by qualified privilege.
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Absolute Privilege
Communications made in a court or during parliamentary debate can be published with immunity, as they are subject to special privilege.
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Scientific or academic peer review
Communications made in a court or during parliamentary debate can be published with immunity, as they are subject to special privilege. It is also a defence if the matter that is alleged to be defamatory was published in a scientific or academic journal, relates to a scientific or academic issue and it had been reviewed independently before being published. Summaries of such matters are also covered by this defence. However, the defence is defeated if it is found that the matter was not published honestly “for the information of the public or the advancement of education”.
Single Publication Rule and Single Cause of Action
A single cause of action is available in relation to the same defamatory matter, even if there are multiple defamatory imputations from it.
Leave of the Court is required to bring multiple defamation proceedings about the same or similar matters.
Remedies
You may be able to reduce your liability by retracting or deleting content that contains defamatory material. Issuing an apology and/or statement of clarification may also reduce your liability.
The most common remedy in defamation cases is the awarding of monetary damages. Damages may be awarded for economic loss as a result of defamation, or for hurt feelings or general damage to esteem.
In some cases, it is possible to defend against a claim of defamation by demonstrating that you made a reasonable offer of amends to the plaintiff, which they refused in favour of legal action.
Always ensure that any content you publish or reproduce does not contain material that may cause unjust damage to the reputation or esteem of another person or entity. Do not publish unsubstantiated allegations, in the event that you find out something you have published is incorrect or not based on evidence, withdraw it immediately and offer an apology. Defamation may occur out of negligence or without intention to cause harm. Court proceedings for defamation are expensive, no matter which side of the case you are on. In the case that someone has been defamed, it is highly advisable that amends be made out of Court where possible. Refusal to accept a reasonable offer of amends can sometimes derail a defamation proceeding and put the wrongdoer on significantly better footing.
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