Defamation Law Solicitors & Lawyers

Australian law recognises a public right to freedom of speech, however, individuals also have a private right to protect their reputation. Defamation laws have been enacted to ensure that an individual’s reputation is protected from harm.

Defamation law has developed through both State legislation and the common law, and until 2006, laws differed considerably between States. In May 2005 it was announced that State and Territory Governments had finally reached agreement on enacting uniform defamation laws, and intended to do so by 1 January 2006. Uniform state legislation has since been enacted in most States and Territories.

If you need legal advice regarding a defamation law suit, then contact us today. We have access to specialist defamation lawyers in Sydney Melbourne Perth Brisbane & Adelaide who are experts in this complex area of law. Complete the contact form to find out more about your rights. Our defamation solicitors provide an obligation-free service.

Defamation Claims

Defamation is a communication (through words or images) about someone which tends to lower the person’s reputation in the eyes of members of the community or which causes injury to a person’s reputation in business, profession, or their trade.

Publication of a defamatory matter constitutes a cause of action. A person who has been defamed can bring a civil action, and if successful, can be awarded substantial compensation.

A publisher can make an “offer of amends” within 28 days of receiving a complaint from a person who has allegedly been defamed. The offer must include an offer to publish a correction and pay expenses incurred by the person, and may also include an offer to publish an apology and compensate the person for any loss suffered. Careful thought needs to be given as to whether to accept this offer, because if the person rejects the offer, in circumstances where it is subsequently held that the offer was reasonable, it can act as a full defence.

Where a dispute cannot be resolved, thought should be given to commencing legal proceedings in a court of law. Unless the court orders otherwise, a plaintiff or defendant in defamation proceedings may elect for the proceedings to be tried by jury. Where there is a trial by jury, the jury is to determine whether the defendant has published defamatory matter about the plaintiff and, if so, whether any defence raised by the defendant has been established. If the jury finds that the defendant has published defamatory matter about the plaintiff and that no defence has been established, the judge and not the jury is to determine the amount of damages (if any) that should be awarded to the plaintiff.

Defences to Defamation

Legislation and the common law now allow the defendant to plead various defences in response to a lawsuit for defamation. A defendant can argue the following defences:

1. Justification

   The “Truth Defence” is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.

2. Triviality

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

3. Absolute privilege

   This defence applies if a matter is published in the course of the proceedings of a parliamentary body.

4. Publication of Public Documents

   For example, a report or paper published by a parliamentary body, or a record of votes, debates or other proceedings relating to a parliamentary body published by or under the authority of the body or any law, or any judgment, order or other determination of a court or arbitral tribunal.

5. Fair Report of Proceedings of Public Concern

   Proceedings of public concern include: proceedings in public of a parliamentary body, proceedings in public of an international organisation of any countries or of the governments of any countries, proceedings in public of an international conference at which the governments of any countries are represented etc.

6. Qualified Privilege for Provision of Certain Information

   The defendant may argue that they have an interest or a legal, social or moral duty to communicate something to a person and that person has a corresponding interest or duty to receive the information. Qualified privilege traditionally protects communications such as references given by employers or complaints to the police. The defence will fail if the plaintiff can prove that the defendant was motivated by malice to make the communication.

7. Honest Opinion

   The honest opinion defence applies where:

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

   The honest opinion defence extends to employers and people who are publishing other’s opinions such as letters to the editor and feature articles.

8. Innocent Dissemination

   It is a defence to the publication of defamatory matter if the defendant proves that:

   • the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor, and
   • 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.

A subordinate distributor is “not the first or primary distributor” and not the author or originator of the content. This defence applies to booksellers, newsagents, and Internet Service Providers (ISPs). It is worth noting that an element of this defence is that the person concerned did not know that the subject matter was defamatory. This means that once the defendant is alerted to the defamatory nature of the content, the defence will be lost.

Damages

In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.

Unless the court orders otherwise, the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is in the region of $300,000 (this amount is indexed each year). The court does have discretion to award an additional amount for aggravated damages. Aggravated damages can be awarded because a publication was reckless, because a publisher failed to make proper enquiries, or even because a publisher failed to apologise. Aggravated damages have no limit.

The court can take into consideration evidence on behalf of the defendant, in mitigation of damages, that the defendant has made an apology to the plaintiff about the publication of the defamatory matter, or the defendant has published a correction of the defamatory matter, or the plaintiff has already recovered damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter.

Companies

Companies generally cannot sue for defamation. In certain circumstances, company officers may have a cause of action personally if they are identifiable in the allegations made. Also note that 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.

Limitation Period

There is a general limitation period of 1 year for defamation actions extendable by a court in certain circumstances to up to 3 years. However, the court will rarely extend the limitation period, therefore legal proceedings should be commenced within 12 months of the publication of the defamatory matter.

Due to the complex nature of defamation law, including “offers to make amends” within 28 days, and the need to bring civil action within 12 months, it is imperative that a person who believes that they may have been defamed, seek legal advice as soon as possible. Similarly, a person who has been notified of a complaint of defamation should speak with a defamation lawyer straight away for legal advice prior to responding, to find out whether their actions can be defended and whether they should take steps to make amends before litigation is pursued against them.

No Win No Fee

Given the subjective nature of many comments, the technical nature of this area of law, and the difficulty in proving “injury” to a person’s reputation, you need an experienced defamation lawyer who is able to provide competent representation and who is prepared to advise you honestly on the risks involved. Our defamation solicitors in Sydney Melbourne Perth Brisbane & Adelaide are experts in their field, and may be able to act for you on a No Win No Fee basis. Contact us today for an obligation-free referral to a defamation lawyer.