Photo courtesy: Kristina Tripkovic collected from Unsplash
In recent times, we are noticing that a lot of celebrities are bringing defamation claims against either media or individuals. But one doesn’t have to insult someone famous to find himself on the receiving end of a defamation lawsuit. To avoid such situation, you need to know what constitutes defamation and how to avoid it. In Victoria, the law relating to defamation is contained in the Defamation Act 2005.
The uniform legislation was adopted by all the states and territories of Australia to ensure the law of defamation did not unreasonably limit freedom of expression. The legislation is designed to provide effective and fair remedies for persons whose reputations are damaged by defamation. It also promotes speedy and non-litigious methods to resolve defamation disputes. In this article, I am trying to provide answers to some frequently asked questions about defamation law. It will help you to either identify if you have a defamation claim or to avoid constituting any future defamation.
1. What is Defamation?
In Victoria, Defamation is the publication of materials that hurts the reputation of an individual. However, to be defamatory, the statements in the publication must be something that is not substantiated by facts. It means that if you publish some defamatory material which is supported by facts, it does not constitute defamation.
According to the Defamation Act in Victoria, ‘publication’ includes:
writing
print media
online media
drawings
speech
Defamatory material can be
words (written or spoken),
an image or
a gesture.
However, to be defamatory, the material-
must identify a person. This can occur even if you don’t use their name;
must be ‘published’, i.e., heard or read, by at least one other person and
constitute one or more of the following:
damaging the reputation of the person, by exposing them to hatred, contempt or ridicule;
causing the person to be shunned and avoided; and/or,
lowering the person’s standing in the eyes of others.
While considering whether a publication is defamatory, the court will look into the implied meanings conveyed by those statements.
2. What constitutes everyday defamation?
Sometimes we may get involved in defamatory activities without even realising the nature and consequences of such actions. If you are engaging in following actions you can be sued for defamation-
Retweeting or reposting a negative comment on social media made about another person. If a defamatory material is re-published, the re-publisher may be sued for the re-publication.
Photoshopped your boss’ head onto another person’s body and sent it to your colleagues as a joke. An image can be defamatory.
Gossiped at a family BBQ about your cousin’s inability to have a baby or to get a job. This could also be defamation.
Revenge porn, cartoons and satire can all be defamatory as well.
3. What if the alleged defamatory publication you have made contains the truth?
The most common defence to a defamation claim is the truth. You can defend an allegation, that you have defamed someone if you can prove that the meanings conveyed by your statement are substantially true. If you can prove that your statement is conveying truth, it won’t be considered defamatory.
Other defences of defamation include:
contextual truth – if the published statement made imputations that are substantially true so the aggrieved could not have been harmed, it may not constitute defamation;
absolute privilege – publications made during parliamentary debates, or in court or tribunal judgments are privileged and immune from defamation claims;
qualified privilege – if the publication was obligatory for some legal, social or moral reason, it may not be defamatory. But this is subject to limitations;
public document – if the published content is also contained in a public document like a parliamentary debate, a court or tribunal judgment, or other governmental publication, it cannot be held as defamatory;
fair report – if the publication was contained in any fair report of proceeding of public concern, it may not be considered as defamation;
honest opinion – if the publication was a statement of honest opinion rather than fact, it may not be defamation;
innocent dissemination – if the distributor of the publication did not have control over the content of the publication, he can be held liable for the defamation;
triviality – if the aggrieved is unlikely to sustain any harm by the publication in question.
4. How do I bring a defamation claim in Victoria?
In Victoria, if you are aggrieved by the publication of a defamatory statement, you may bring a defamation claim against a publisher, within one year of such publication. Such claims are designed to recover costs for harm sustained by you due to the defamation.
Defamation Act in Victoria caps non-economic damages at $250,000. However, this amount might be adjusted to address the yearly inflation.
If a defamatory statement is published only within a particular jurisdiction, like in Victoria, then the law of Victoria applies. Where a statement is published in more than one jurisdiction, such as in a national newspaper, then the applicable law is the jurisdiction with the closest connection to the harm caused by such publication.
5. What could be the consequences of making defamatory publication?
If it is proved that you have published a defamatory material, the court can order you pay monetary compensation (damages) to the person who has been defamed. The amount of the damages will be depending on the loss suffered by the defamed person. In a recent famous case, the damages awarded to four members of a family, who were defamed, was $3.75 million.
The Court can also ask you to:
apologise to the defamed person; and
remove all traces of the defamation.
6. How can you avoid defaming someone?
You can take several steps to avoid any defamation obligations. While publishing or communicating any material, that may defame someone, you should
avoid identifying the person in your communication and
being careful when commenting on matters relating to ethics/honesty, race, religion, ethnicity, gender, age and sexual orientation.
If you are notified that something that you have published may be defamatory, take immediate action, including possibly removing, correcting or clarifying the comment. It will help you to manage any future risk.
Finally, if you are making a comment that may defame someone, even if you believe what you are saying is true, always confirm and double-check your resources for the information before you make such comment. It will help you to avoid any future defamation claim.
If you need more information about defamation claims or if you need to find a lawyer to get some legal advice relating to your defamation claims, please feel free to contact us on www.lawcircuit.com.au or call us at 0418631798 or email us at bonhi@lawcircuit.com.au
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