Over the past few years, we’ve seen more and more high profile defamation cases come into the spotlight and make their presence known in Australia.
With lawsuits from Rebel Wilson, Lloyd Rainey and the recent verdict handed down in the Geoffrey Rush case, it’s fair to say that defamation cases are back on the map.
But what actually is defamation?
Put simply, defamation is saying something bad about someone. Something will be considered defamatory if what was said lowers the subject in the minds of right thinking members of society. Usually their reputation will be damaged by bringing them into hatred, contempt or ridicule amongst their peers.
Who can sue?
Any living person can sue for damages in defamation in Australia. The courts have deemed that deceased persons, no matter how tarnished their reputation may be, are beyond harm and unable to sue. However, living relatives or business associates who have been defamed by association to the deceased are still eligible to sue.
How can an action be brought forward?
To be eligible to bring forward a case in defamation the alleged defamatory content must satisfy three conditions.
1. It must contain a defamatory imputation.
A defamatory imputation is a statement, visual representation or meaning that makes others think less of the person it is referring to. The imputation may be clear and direct, but it may also be implied or through an innuendo.
To test if an imputation holds defamatory meaning the courts will consider if it would lower the plaintiff in the estimation of right thinking members of society. The test for this was established in the case of Sim v Stretch.
2. The defamatory imputation must refer to the person who complains of the defamation.
This may seem fairly straight forward, but there are a number of ways in which this condition may be satisfied. The person could be named specifically or have their identity revealed in a photograph; the person could have been named specifically and someone else with the same name sues; the person might not be named, but they could still be identified; the identity of the person could be mistaken; or the person is not named, but is part of a group that is named or identified.
3. The imputation must have been published.
The imputation must be published to someone other than the person complaining of defamation and they must be capable of understanding the defamatory meaning. The case of Gutnick v Dow Jones held that once defamatory material has been downloaded on the internet, then it has been published and the location where the material has been downloaded is where the damage to reputation has occurred.
What are the defences to defamation?
The threshold to bring forward defamation cases in Australia is considered quite low, so it makes sense that there are a number of different defences to defend published matter and free speech.
This defence involves the defendant having to prove what they published was true by submitting evidence to substantiate the claim.
2. Contextual truth
This applies when the matter published was mainly true, but contained minor mistakes. For example if a journalist correctly reported that a man was a fraud, but incorrectly reported that the man had been charged with fraud, then the fact that the man hadn’t been charged is unlikely to further damage his reputation.
3. Qualified privilege
This defence applies if it can be proved that what was published was a matter of public interest that served the public benefit. For this defence to be successful it must be proved that:
- The person who viewed the defamatory matter has an interest in having information on the subject
- The matter was published to give this person such information; and
- The conduct of the publisher was reasonable in the circumstances
4. Absolute privilege
This defence protects everything said, no matter how defamatory or reputation damaging it is. It only applies for those giving evidence in a court or before a royal commission/inquiry or to protect parliament members when formally speaking during a parliamentary session.
5. Publication of public documents
If the publication contained documents in the public domain or that should have been in the public domain, granted that they were published for the advancement of education, then that is a legal defence.
6. Honest opinion
Publication of a person’s honest opinion will not be prosecuted, as long as they can prove that the publication was intended as an expression of opinion rather than factual information.
7. Fair report of proceedings of public concern
This defence applies if it can be proved that the defamatory matter was a fair and accurate report on public proceedings held in a court, tribunal, parliament, government body or before the Ombudsman.
8. Innocent dissemination
This defence protects people who were spreading defamatory content, but did not know that they were doing so. This includes librarians or broadcasters for example, as long as their lack of knowledge was not a result of negligence.
This applies if what was published was so trivial it could cause no real harm to the person’s reputation.
If you’re thinking of commencing a defamation case consult expert advice and think hard about what defences might be available to your opponent before moving forward.
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