Defamation is the publication or communication of material that contains unsubstantiated facts which negatively impacts a person’s reputation. The purpose of defamation action is to provide effective and fair remedies for persons whose reputations are harmed by the publication and communication of defamatory material, while balancing freedom of expression. Defamation action in Queensland is regulated by the Defamation Act 2005 (Qld) (“the Act”).

In the age of social media, the law of defamation continues to become increasingly relevant. As such, defamation cases involving social media apply the same principles that relate to print and speech. However, suing for defamation is serious and should not be considered lightly. On that basis, we recommend that you seek legal advice before commencing defamation proceedings.

Can I sue for defamation?

Please note that there are strict timeframes to adhere to regarding defamation action. In Queensland, the statute of limitations for a claim of defamation is one (1) year from the date of publication of the defamatory material (unless extraordinary circumstances persuade the court to grant an extension). If you think you have been defamed, please seek legal advice expediently.

It is important to note that under the Act profit-driven corporations with ten (10) or more employees are not entitled to sue for defamation. In addition, there is no cause of action for defamation of, or against, deceased persons. As such, you must ensure that you satisfy certain criteria before considering any action.

In order to successfully prove defamation, you must be able to satisfy the following elements:

1. The defamatory material was communicated or published through media, print or speech;
2. The defamatory material must have been communicated or published to a third party (i.e. someone other than the aggrieved);
3. The material must have been defamatory in nature;
4. The material must be about or concerning the aggrieved; and
5. There was no lawful excuse for publishing the defamatory material.

In addition, the onus is on you as 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.

How can I remedy the situation?

Typically, your first course of action is to write to the publisher establishing the defamatory publication, the reasons the material is defamatory and the damage it has caused to your reputation. Within that correspondence you should make a demand for the following:

1. Retraction of the defamatory publication from any and all places it was published and/or communicated; and
2. Provide a written undertaking advising the removal of all written statements and further refraining from any defamatory oral statements.

In addition, you must request the publisher to make an offer to make amends, pursuant to Section 13 of the Act. Where the publisher refuses to make amends, the aggrieved is entitled to 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.

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. It is important to understand that irrespective of whether the published material is defamatory, the publisher may be entitled to rely on a defence.

Some of the defences available in Queensland are as follows:

1. Justification: if the defendant can prove the defamatory material is substantially true;
2. Contextual truth: if the defamatory material carries contextual imputations that are substantially true;
3. Public document: where the defamatory material was contained in a document available to the public;
4. Honest opinion: if the material was an expression of opinion as opposed to a statement of fact; and
5. Triviality: in circumstances where the plaintiff was unlikely to suffer any harm as a result of the published material.

What relief is available?

This varies on a case-by-case basis, particularly in circumstances where the parties negotiate an out-of-court settlement.

Our lawyers have extensive experience in defamation matters with the ability to protect you and your business from defamation. Please contact Legal Practitioner Director, Shaun Rose or Senior Associate, Melissa Inglis if you intend to make a defamation claim or have questions regarding defamation in general.

Julian Flanagan

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