Defamation Explained

Nearly everyone has, at some stage or another, been the subject of gossip. Many of us will also have had people within our families, workplaces and friendship groups tell stories about us that are a warped version of events, or even outright lies.

They might even do these things in a public setting. But is this defamation? And if it is, what can we do about it?

Call us today on 03 9878 5222 for a complimentary consultation with one of our defamation Lawyers in Melbourne.

What is defamation?

Basically, defamation is a claim that is false and is made by someone other than the person being defamed.  Though the Defamation Act 2005 (Vic) has now abolished the distinction, technically, defamation can occur in two ways:

  1. Libel – a false statement that is written or published in printed word or picture.
  2. Slander – a false statement made in spoken word, sounds, gestures or sign language is technically called slander.

But in order to sustain a claim for defamation in the Courts, you must also show that the person’s defamation has also caused you some kind of financial damage.

Some high profile defamation cases

A number of high-profile defamation cases have arisen in Sydney and Melbourne over the last two years.

In an Australian landmark case, actress Rebel Wilson sued magazine publisher Bauer Media for a series of defamatory articles written in the magazine Women’s Day.  Her claim was that she had lost opportunities to act in certain movies because the publisher created a negative image of her that production companies did not want to be associated with.

The judge in the Wilson case initially awarded Wilson a huge $4.5 million in damages, though on later appeal that was reduced to $600,000.

Geoffrey Rush also successfully sued Rupert Murdoch’s The Daily Telegraph for defamation over a front-page report branding him “King Leer.” While another well-known actor, Craig McLachlan, brought a suit against Fairfax Media and the ABC over sexual harassment allegations they made.

Is defamation common?

A Media Entertainment and Arts Alliance (MEAA) survey of more than 300 journalists released in April of 2019 showed one in 10 journalists had received a defamation writ over the previous 24 months. In addition,  almost 30 per cent in the last year had a story they wrote pulled before it went to print due to defamation concerns.

So is defamation only for famous people?

The impact of social media on defamation

In this era of social media, defamation occurs on a fairly regular basis, and not just to famous people. In fact, the number of ordinary Australians pursuing cases is on the rise.

According to a study by Professor Peter Fray and Professor Derek Wilding at the University of Technology in Sydney, there were 609 defamation cases in Australia between 2013 and 2017. Sixteen of these defamation cases involved Facebook posts, 20 involved emails, four were about posts on Twitter and two focused on SMSs.

An increasing number of these cases involved plaintiffs who wouldn’t be considered public figures. This suggests a slow but steady rise in individuals taking action over defamatory comments posted online.

People have said hurtful things about me on-line. Is this defamation?

Critical and demeaning comments can cause others to think less of you, which is in a way the essence of defamation.  But for defamation to occur, there also needs to be some actual physical loss or damage as well.

In general, “hurt feelings” without physical damages will not be enough to sustain a claim for defamation in the Court.

What counts as damage or physical loss?

Damage might be that you have lost an opportunity because of what was said. Perhaps you didn’t get a job you applied for, or you lost the job you had. You may have been kicked out of a rental house, or even been arrested, leaving you unable to work. Damage may also have occurred if the defamatory statement led to another person making a claim against you that causes you to have to pay money.

So how do I handle an attack on social media?

If someone is making demeaning comments about you on-line, it is a good idea to do everything possible to appear proper and above board. That means being polite and level headed and not responding with counter-abuse.

In fact, often one of the most effective responses to defamatory comments is to ignore them entirely or laugh them off. This sends the message that the issue is not important.

If the attack has had more serious consequences in your life, there are certain things you need to establish to prove defamation.

Proving defamation

For a start, it is not true that someone has to mention you by name to defame you. If the nature of their comments makes it obvious they are talking about you, this can often be enough.

If you want to prove defamation you must show:

– that the claim/statement made is indeed false; AND

– that the statement has harmed you and caused you loss or damage; AND

– that the person making the claim/statement knew that it was false or did nothing to ensure it was true.

What if someone is accusing you of defamation?

There are some defences to a Defamation Action:

Truth (Justification): this defence applies where the person making the defamatory statement can prove that it is substantially true

Contextual Truth: this defence applies if the defamatory statement includes one or claims which are substantially true and the defamatory statements do not further harm the reputation of the defamed person because of the substantial truth of the other statements.

Absolute privilege: this defence applies when the statement was made or published on an occasion of absolute privilege (e.g. parliament).

Publication of public documents: this defence applies if the person making the defamatory statement proves that the statement was contained in a public document or a fair extract from a public document.

Fair report of proceedings and public concerns: this defence applies if the person making the defamatory statement can prove that the statement was or is contained in a fair report of any proceedings of public concern.

Qualified privilege: If you act reasonably and tell someone something they have an interest in knowing about, you may be protected from being sued for defamation.  For example, if you report someone to the police. Even if your allegations are false, you cannot be sued for defamation as long as you honestly believed them.  (If you repeat these allegations to other non-related people, however, that is a different matter).

Honest opinion: this applies if the person making the defamatory statement proves that the statement was an opinion rather than a statement of fact, and that the opinion was a matter of public interest and based on proper material.

Innocent dissemination: this defence applies if the person making the defamatory statement published it in the capacity as an employee or agent and they neither knew, nor ought reasonably to have known, that the matter was defamatory and their lack of knowledge was not due to any negligence on their part.

Triviality: this defence applies if the person making the defamatory statement proves that the circumstance of the publication was such that the person defamed was unlikely to sustain any harm.

What can I do if I think I have defamed someone?

If you think you have defamed someone, it is always best to apologise to the person and take the material down. If the person you defamed wants to sue you for defamation, or sends you a legal notice asking you to take down the material and apologise, you should see a lawyer for advice.

If you are worried that you have defamed someone or someone has defamed you, don’t hesitate to get in touch.