Defamation occurs where someone distributes or publishes material which is harmful to a personal, professional, or business reputation. Such material will be deemed defamatory if content negatively affects the reputation of another, and it is offensive, inflammatory, or untrue.
Defamatory material can take many forms, so long as it is published to another person, or group of people. This may occur online in blogs, articles, social media, online reviews etc, or by speaking / broadcasting on the radio, television, or internet. There is no longer a distinction between written defamation (libel) and verbal defamation (slander), and publication of defamatory material in any form is actionable.
A person or business may seek compensation for financial loss, or for suffering ridicule and contempt as a result of the material, under the Defamation Act 2005. However, there is a delicate balance between protecting a reputation and allowing freedom of speech and free distribution of information.
Making a claim for defamation
If you believe someone else is making false imputations about you or your business, you may be able to make a defamation claim. Legal proceedings must be commenced within 12 months if publication of the defamatory material.
A successful claim will need to prove:
- The communication was published, i.e. made available to other people;
- The communication clearly identifies you or your business, or implies the material is about you; and
- The communication was defamatory and negatively affects your reputation.
Defamatory – but what does that mean?
The material must be ‘defamatory’ to the ‘ordinary, reasonable’ person, which means it must be likely to:
- cause the person to be shunned, shamed or avoided by others;
- adversely affect the reputation of the person in the minds of right-thinking members of society; or
- damage to the person’s professional reputation by suggesting a lack of qualifications, skills, knowledge, capacity, judgment or efficiency in his or her trade, business or profession.
Unfortunately, there is no one-size-fits-all rule as to what classifies as defamatory, and consideration to the facts of the case will need to be given. However, the Court will assess whether the material was likely to expose the claimant to ridicule or contempt by an ordinary person.
Defending a defamation claim
Common defences to a defamation claim include:
- The communication was justified – “substantially true”
- The communication was made in absolute privilege – for example made in Court, Parliament
- The communication was of honest opinion – not a statement of fact, based on other material, and in the public interest
- The communication was freedom of speech – only available with regards to the Government
Defamation cases are becoming increasingly popular due to social media platforms. For example, the case of Mickle v Farley [2013] NSWDC 295 relates to a high school teacher who was awarded $105,000 in damages for defamatory posts on Facebook and Twitter made by a former student. It was held “that when defamatory publications are made on social media it is common knowledge that they spread. They are spread easily by the simple manipulation of mobile phones and computers”. We urge our readers to take care what you write or say about others.
If you believe you have been defamed or are facing a defamation claim, please contact a member of the Cheney Suthers team.
