Defamation Lawyers

WHAT IS DEFAMATION?

Defamation is a communication from one person to at least one other that lowers or harms the reputation of an identifiable third person, where the communicator (the publisher) has no legal defence. The law of defamation aims to balance free speech with the right of an individual to enjoy a reputation free from an indefensible attack.

While the news media tends to be the main target for defamation actions, people have also sued over poems, novels, cartoons, paintings, photographs, artistic criticisms, songs and satire.

For a defamation action to succeed, the person complaining of the defamation (the plaintiff) has to prove three things:

1. that the communication has been published to a third person
2. that the communication identifies (or is about) the plaintiff; and
3. that the communication is defamatory.

PUBLISHED COMMUNICATION

To be defamatory, the material has to be published (communicated by any means either written, orally, pictorially) to at least one person other than the plaintiff. The intention of the publisher does not matter as liability for defamation can arise from errors.

Everyone involved in the publication is potentially liable and each, all, or some can be sued. This means that writers, publishers, editors, artists and gallery owners must all be aware of the potential dangers. This also means that it is no defence to argue that you are only repeating rumours or a comment made by somebody else: liability can arise from a republication.

IDENTIFICATION

The plaintiff has to prove that the plaintiff was the person identified by the communication. This is obviously most straightforward when the plaintiff is actually named, but other information may be sufficient. Even the use of a false name may not save you if the plaintiff can be identified by other means.

A class of people cannot be defamed, but a statement denigrating a group may be defamatory of a member of that group. The plaintiff must show that the words would be understood to refer to that plaintiff in particular. If the group is reasonably large, it is less likely that this can be proven.

Generally, a dead person cannot be defamed, although a living relative may be if the communication defames them by association.

In all States and Territories, companies and other organisations with a legal personality (eg. incorporated associations, trade unions, local councils) cannot sue for defamation. There are specific exceptions however, which allow some companies to sue, that depend on the nature of the company and the number of its employees.

DEFAMING COMMUNICATION

The key issue in a defamation action is damage to a persons reputation. The test of whether a communication is defamatory is: Does the communication lower or harm the plaintiffs reputation, hold the plaintiff up to ridicule, or lead others to shun and avoid the plaintiff? This is judged from the viewpoint of ordinary reasonable people in the community in general and in light of contemporary standards.

The meaning that is argued over (the imputation) might not be what was meant to be said. The literal meaning of the communication is not the only meaning that is considered. The court looks at what it considers the ordinary reader or viewer could have understood the communication to mean. This may differ from what both the plaintiff and the defendant think.

The plaintiff does not have to prove that the imputation is false, that it actually caused them harm, or that you meant it to cause harm. On the other hand, just because an imputation hurts or upsets a plaintiff, does not mean that it is defamatory. It must affect their reputation in a damaging way.

Context is important. A picture can become defamatory according to placement. A comment might not be defamatory when told to a limited audience, but may become defamatory when removed from its context and circulated more widely. In one case a plaintiff who told a small group of friends a self-deprecating story about being mistaken for a hangman was able to sue when a local newspaper published the story.

LIMITATION PERIOD

For material published after 1 January 2006 if you wish to sue someone in defamation, you must commence the action within one year of the publication of the material. However the court retains the discretion to extend this period.