Defamation is the publication or communication of material that contains unsubstantiated facts or allegations which negatively impacts a person’s reputation. A defamatory publication need not be in writing, it is any communication – words, images, even gestures – that have the effect of injuring the reputation of the person the subject of it.
Defamation actions in Australia are governed by substantially uniform Defamation Acts of each State and Territory. Defamation action in Queensland is regulated by the Defamation Act 2005 (Qld) (“the Act”). In respect to material published on the internet – a plaintiff is able to choose to commence a defamation action in the State or Territory with laws most favourable to their case.
New Age Issues
In the age of social media, the law of defamation continues to become increasingly relevant. The features of social media, which provide publishers with speed, anonymity and ease of access to publish to whomever and wherever in the world, raise issues of intense complexity for the law. A substantial portion of defamation action in Australia is now disputes between individuals over comments posted on social media, websites, or other digital platforms.
One of the most prominent issues which has been brought to the forefront by the rise of social media is the re-publication of defamatory material, now commonly known as the ‘grapevine’ effect. In defamation cases involving social media, the potential for ongoing damage is exacerbated by the ease with which users of social media can republish the defamatory material to a large audience of viewers in one click, by word of mouth or by inviting others to view the material online by sharing links to it.
Alarmingly, a person who did not ‘create’ or initially publish the defamatory material, but simply shares it (for instance, by “retweeting” or tapping the share button on facebook), can also be held found liable for defamation. The offended individual can sue both the original author and anyone who republishes the material for defamation, providing that they can meet the criteria to establish defamation.
Elements of Defamation
Before commencing proceedings for defamation, it is vital that you consider whether the following elements can be satisfied: –
- The defamatory material was communicated or published through media, print or speech;
- The defamatory material must have been communicated or published to a third party (i.e. someone other than the aggrieved);
- The material must have been defamatory in nature;
- The material must be about or concerning the aggrieved; and
- There was no lawful excuse for publishing the defamatory material.
In addition, the onus is on the aggrieved to prove the published material was of a defamatory nature. On that basis, it must be established that if not for the defamatory material, your reputation would not have been damaged. The objective test used by the courts is whether in the eyes of a reasonable person the aggrieved person’s reputation has been lowered.
Resolution without litigation
Prior to commencing proceedings for defamation, the first course of action should be to issue a letter, commonly referred to as a ‘Concerns Notice’ to the publisher establishing the defamatory publication, the reasons the material is defamatory and the damage it has caused to your reputation. Section 14 of the Queensland Defamation Act (2005) deals with the issuance of Concerns Notices and stipulates that a Concerns Notice must also inform the publisher of the defamatory imputations that the you consider are or may be carried about the you by the matter in question (the imputations of concern).
In addition, you must request the publisher to make an offer to make amends, pursuant to Section 13 of the Act. This request can also seek an amount of money to compensate you for any loss and damage caused by the publication of the defamatory statements, and any legal fees that have been expended in relation to the matter.
Where the publisher refuses to make amends, you can proceed with further action in court. However, if the offer is accepted, the aggrieved person cannot continue to enforce an action for defamation against the publisher.
There are strict time limitations by which the recipient of a Concerns Notice may make an offer to make amends. If you receive a Concerns Notice, it is prudent that you take immediate steps to obtain specialist legal advice.
What if I have been accused of defamation?
In circumstances where you are accused of defamation, you may be entitled to rely on a defence. In some cases, irrespective of whether the published material is defamatory in nature, the publisher may be entitled to rely on a defence.
Some of the defences available in Queensland are as follows:
- Justification: if the defendant can prove the defamatory material is substantially true;
- Contextual truth: if the defamatory material carries contextual imputations that are substantially true;
- Public document: where the defamatory material was contained in a document available to the public;
- Honest opinion: if the material was an expression of opinion as opposed to a statement of fact; and
- Triviality: in circumstances where the plaintiff was unlikely to suffer any harm as a result of the published material.
Whether you have been defamed, or have been accused of defamation, our firm has significant experience in acting on behalf of client’s in both circumstances including obtaining urgent injunctions against large broadcasters for publications online, television and social media and obtaining favourable costs orders for our clients.