What is Defamation?

Defamation is the act of communicating or publishing to persons, other than the defamed person, imputations which have the effect of lowering a person’s reputation in the eyes of the public at large. For example, John says to members of the community that Bill has been convicted of having criminal acts when this is completely untrue.

Did you know that?

1.  A corporation has no cause of action for defamation for the publication of defamatory matter about it unless it was an excluded corporation at the time of the publication. A corporation is an excluded corporation if —

  •  the objects for which it is formed do not include obtaining financial gain for its members or corporators; or
  •  it employs fewer than 10 persons and is not related to another corporation, and the corporation is not a public body.

In counting employees part-time employees are to be taken into account as an appropriate fraction of a full-time equivalent.

2.  A person (including a personal representative of a deceased person) cannot assert, continue or enforce a cause of action for defamation in relation to —

  •  the publication of defamatory matter about a deceased person (whether published before or after his or her death); or
  •  the publication of defamatory matter by a person who has died since publishing the matter.

A claim for defamation must be commenced within one year from the date on which publication of the defamatory material occurred unless an extension of time is granted by the Court.

What do I do if I have been defamed?

The first step in any Defamation matter is to issue what is known as a “Concerns Notice”. A “Concerns Notice” is a written document which informs the publisher of the defamatory imputations which are said to arise or be conveyed about the aggrieved person from the defamatory statement or material. The Concerns Notice also informs the publisher that they ought take steps to make amends.

Within 28 days of receiving a “Concerns Notice” the publisher of the defamatory statement or materials may elect to make an “Offer to Make Amends”. An “Offer to Make Amends” is a written document prepared in accordance with the Defamation Act to try and resolve defamation disputes at the earliest opportunity. If the “Offer to Make Amends” is reasonable and is not accepted by the aggrieved person it can be used as a defence to any Court proceedings. It is therefore important to carefully consider any “Offer to Make Amends” carefully.

If you believe you have been defamed you ought seek legal advice. Our office has experience dealing with Defamation actions and will be more than happy to assist you. Please contact our office on 6144 4470 to discuss.

Some possible defences to defamation include:

 

1.    Justification (s 25)

It is a defence if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.

2.   Contextual truth (s 26)

It is a defence if the defendant proves that —

  • the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true; and
  • the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

3.   Absolute privilege (s 27)

It is a defence if the defendant proves that it was published on an occasion of absolute privilege.

4.   Publication of public documents (s 28)

It is a defence if the defendant proves that the matter was contained in —

  • a public document or a fair copy of a public document; or
  • a fair summary of, or a fair extract from, a public document.

5.   Fair report of proceedings of public concern (s 29)

It is a defence if the defendant proves that:

  • the matter was, or was contained in, a fair report of any proceedings of public concern; or
  • the matter was, or was contained in, an earlier published report of proceedings of public concern, the matter was, or was contained in, a fair copy of, a fair summary of, or a fair extract from, the earlier published report and the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair.

6.   Qualified privilege for provision of certain information (s 30)

There is a defence of qualified privilege if the defendant proves that —

  • the recipient has an interest or apparent interest in having information on some subject;
  • the matter is published to the recipient in the course of giving to the recipient information on that subject; and
  •  the conduct of the defendant in publishing that matter is reasonable in the circumstances.

7.   Honest opinion (s 31)

It is a defence if the defendant proves that —

  • the matter was an expression of opinion of the defendant rather than a statement of fact;
  • the opinion related to a matter of public interest; and
  • the opinion is based on proper material.

8.   Innocent dissemination (s 32)

It is a defence if the defendant proves that —

  • the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor;
  • the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory; and
  •  the defendant’s lack of knowledge was not due to any negligence on the part of the defendant.

9.   Defence of triviality (s 33)

It is a defence if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.

 

If it is alleged that you have defamed someone you ought seek legal advice. Our office has experience dealing with Defamation actions and will be more than happy to assist you. Please contact our office on 6144 4470 to discuss.

 

 

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