What is 'defamation'?
'Defamation' is the publication of a harmful statement to a third person about a person or corporation.
Who can be defamed?
Both individuals and corporations can be defamed.
It is important to note that it is only living individuals and 'excluded corporations' that can bring an action for defamation. Excluded corporations are those corporations that:
- employ fewer than 10 persons; or
- have not been formed for financial gain for its members.
Further still, those 'excluded corporations' that can bring an action for defamation are treated differently to individuals as corporations cannot suffer feelings of hurt as a real person can.
Therefore, defamation of corporations is said to relate to injury to trading or reputation.
What amounts to defamation?
An action for defamation requires proof of 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.
When does defamation amount to compensation?
A successful action for defamation will entitle the plaintiff to an award for nominal damages.
Further, under certain circumstances, a successful plaintiff may be entitle the award of compensatory damages and/ or aggravated damages.
The amount of compensatory damages that the plaintiff can receive will depend on the circumstances of the case. As a guide, the court will award a sum sufficient to vindicate the plaintiff such to convince a bystander of the baselessness of the charge.
Generally, a plaintiff will be entitled to compensatory damages where there has been:
- actual pecuniary loss;
- anticipated pecuniary loss;
- any social disadvantages resulting from the defamation;
- injury to reputation;
- injury to feelings and health; and/ or
- special or actual damages.
If the action for defamation is brought by an individual, the court will also have regard to any additional suffering that an individual may have felt as a result of the defamation.
Along with compensatory damages, the court may consider it necessary to order aggravated damages. Aggravated damages are additional damages awardable where the conduct of the defendant exacerbated the situation. In determining aggravated damages, the court will have regard to:
- 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.
It is important to note that the Defamation Act 2005 (Qld) proscribes a limit on non-economic loss at $250,000, which can only be exceeded in certain circumstances.
How Ramsden Lawyers can help
Defamation is a complex area of the law that requires expertise and experience.
Here at Ramsden Lawyers we have the necessary expertise and experience to help you in any situation. We are experts in litigious and non- litigious resolution of defamation disputes.
We are the Gold Coast's commercial litigation experts and specialise in both plaintiff and defendant defamation cases.
"For more information and advice about this topic, please call our office to speak with one of our experts in this area".
By Shanan John Ramsden, Lawyer and Managing Director, Ramsden Lawyer
6 May 2013