Whether it be a famous politician, sportsperson or some other individual in the public eye, actions in defamation appear to be highly popularised and standard tool used to protect and maintain an individual’s reputation in the eyes of the wider community. However, with the uniform Defamation Laws undergoing extensive amendment in recent years, there has been considerable confusion about the elements constituting the cause of action. In this article, Law Clerk, Riley Hickey, and Senior Associate Lachlan Boyle decode the tort of defamation to provide insight into the time-old question: have you been defamed?

Decoding Defamation

Defamation law has been codified in uniform model provisions enacted in all Australian States and Territories. This uniformity relieves complainants, primarily where publications may be instigated and ultimately disseminated across borders and jurisdictions.

Elements

To successfully establish the tort of defamation, the individual must sufficiently prove a series of elements that indicate that a matter published against them bore a meaning that is or was defamatory. However, determining whether a matter has a meaning capable of being construed as defamatory is ultimately a question reserved for judicial determination.

The four elements necessary to establish a cause of action for defamation include:

1. the matter complained of must bear a defamatory meaning (whether directly or indirectly);
2. the matter must explicitly and specifically identify or concern the complainant;
3. the matter must be sufficiently published to at least one party (other than the complainant); and
4. the publication of defamatory matter about the plaintiff has caused or is likely to cause, serious harm to the reputation of the person.

On a community scale, the most common type of action instituted is undoubtedly electronic publications, whether unsavoury Google reviews chastising small businesses or social media posts naming and shaming particular individuals to the general public. Notably, as  defamation tort seeks to protect a complainant’s reputation, more than publication to only the defamed individual will be required.

If the elements above can be established, they must be included within a Concerns Notice addressed to the publisher of the material. If you are considering your options concerning Defamation or have received a Concerns Notice, we encourage you to immediately seek legal advice to comply with any associated limitation periods.

What about Corporations?

Generally, most corporations unfortunately cannot institute a cause of action for defamation concerning the publication of defamatory material. However, exceptions exist, especially for corporations categorised as ‘excluded’. The hallmarks of an ‘excluded’ corporation include:

• that the purpose of its formation does not involve members or corporators gaining financial benefit from the objects;
• the corporation employs fewer than 10 persons; and
• it is not a public body.

The author otherwise wishes to emphasise that even if a corporation may not fit within the categorisation of an ‘excluded’ corporation, the necessary restrictions do not preclude a cause of action in defamation that an individual associated with the corporation may instigate in relation to the publication of defamatory material concerning the individual, despite where the publication also conveys defamatory imputations about a corporation.

Injurious Falsehood

Often viewed as a cause of action synonymous with defamation, the tort of injurious falsehood is essentially an action on the case. Ultimately, the tort of injurious falsehood captures circumstances where either a written or oral statement (or falsehood) has been conveyed, but may not necessarily be in a defamatory manner, but is otherwise published maliciously to cause actual damage such as provable economic loss. To successfully establish an action for injurious falsehood, the plaintiff must establish that:

• false statements were published to third parties;
• the false statements relate to the complaint (whether that be its property or business);
• there was an element of malice at the time of publication; and
• damages are causally connected to the publication of false statements.

Defences to the action

Despite the seemingly endless circumstances that may be raised as defamation, publishers have a range of defences at their disposal to avoid liability for publishing defamatory materials. Such defences may include the defence of contextual truth, justification, absolute privilege, honest opinion, and innocent dissemination (amongst others).

RAMSDEN LAWYERS – HOW WE CAN HELP WITH DEFAMATION

Have you been defamed?  Or you may have received a Concerns Notice as the publisher of purported defamatory material. Our Litigation and Dispute Resolution Division has considerable expertise in defamation disputes for claimants and defendants.

If you are seeking legal advice, Ramsden Lawyers can assist you. We are happy to arrange an obligation-free initial consultation to assist you in navigating the relevant legislation for your circumstances. Our Litigation and Dispute Resolution Division  has specific expertise in helping individuals and (excluded) corporations navigate the tort of defamation and to assess what options may be the most preferable to progress the dispute.

The content of this article is intended to provide general guidance to the subject matter and must not be relied on as legal advice.  Specific advice should be sought about your circumstances.