DEFAMATION, MEDIA AND REPUTATION
With the rise in social media and online publication, clients are becoming more susceptible to defamatory material being published about them and the fall out can be devastating to your reputation. Our Gold Coast Litigation Lawyers have an abundance of experience in defamation matters.
WHAT IS DEFAMATION?
Defamation is the publication of defamatory statements or material about a person or certain companies which fall within the scope of the Defamation Act 2005 (Qld).
An action for defamation usually has three elements including:
- The matter must be published to a third person other than the plaintiff;
- The matter must be of and concerning the plaintiff; and
- The matter must be defamatory of the plaintiff.
In establishing these elements, the first two elements are a question of fact, while the third element is determined by considering whether an ordinary, reasonable person would on hearing, seeing or reading the material, think less of the person about whom the material is published.
Only living individuals and certain ‘excluded corporations’ can bring actions for defamation. Excluded corporations are those corporations that either:
- Employ fewer than 10 persons; or
- Have not been formed for financial gain for its members.
- A successful action for defamation will entitle the plaintiff to an award for nominal damages.
Further, under certain circumstances, a successful plaintiff may be entitled to an award of damages, aggravated damages and/or special damages. The amount of damages that the plaintiff can receive will depend on the circumstances of the case and will generally depend on:
- Actual pecuniary loss;
- Anticipated pecuniary loss;
- Any social disadvantages resulting from the defamation;
- Injury to reputation; and
- Injury to feelings and health.
The amount of aggravated damages that the plaintiff can receive will depend on the circumstances of the case and will generally depend on:
The conduct by the defendant at the time of the publication, Any malice towards the plaintiff, The mode and extent of publication, Conduct of the litigation by the defendant and, Any additional hurt suffered by the plaintiff.
WHO CAN BE RESPONSIBLE FOR PUBLISHING DEFAMATORY CONTENT?
Commonly, the person responsible for making the defamatory publication, statement or material is responsible for the publishing of the defamatory content.
However, in one of the leading Australian case authorities on the matter, Duffy v Google (2015) 125 SASR 437, the court held that in certain circumstances, Google may have primary liability as a publisher of defamatory content. The case provides that Google may be liable for the publication of pre-emptive search terms, links to publications and summaries which appear on a Google search page.
Our Litigation Lawyers have had significant success in bringing claims against Google and other publishers.