If another person has said or published something that has damaged your reputation, exposed you to ill feeling or ridicule, caused others to avoid you or think less of you, then they may be liable for defamation.
An individual or corporation that employs less than 10 people and is not related to another corporation can sue another person in court for civil defamation.
In extreme cases, a person can be charged with criminal defamation if they intentionally publish defamatory material to cause serious harm to another person, knowing it to be false or not caring whether it is true or not. Someone guilty of this offence can be sentenced to up to 3 years imprisonment.
3 things needed to prove civil defamation in Australia
To establish an action in civil defamation, you need to prove 3 things:
- Publication – That someone else (a natural person, company or incorporated association) communicated information to another person or other people (other than yourself);
- Identification – The information identifies you or makes it clear to others that the communication is about you; and
- Defamatory Content – The information is defamatory.
When is information defamatory?
Information may be defamatory if it has damaged your reputation, exposed you to ill feeling or ridicule or caused others to avoid you or think less of you.
The court will ultimately decide whether or not the information in question was defamatory in the eyes of an ordinary person. The court will take into account the ‘natural and ordinary meaning’ of the words used, associated innuendo or the implied meaning of what was said.
Defences to defamation in Australia
Uniform Defamation Law in Australia provides a range of defences to defamation. These may be relied upon as a full defence to an action for defamation where they can be proved. They include:
- Justification / Contextual Truth: For circumstances where the defamatory information is substantially true.
- Absolute Privilege / Public Documents: For situations where the defamatory information was communicated in an occasion of absolute privilege (i.e. parliamentary proceedings, court and tribunal hearings) or published in a public document (i.e. parliamentary reports, court judgments)
- Fair report / Qualified privilege: Requires the defendant to prove that the communication was an honest report on circumstances or information in which an individual or the public has an interest and the communication was not motivated by malice.
- Honest Opinion
- Innocent Dissemination
What punishment or remedies can I get for civil defamation?
In some circumstances, the defendant may be able to repair the damage done by a defamatory remark by publishing an apology or a correction. This may prevent the parties needing to go to court.
If you are successful in court, you may be awarded damages for both actual financial loss you have suffered (for example, reduced income as a direct result of the defamation) as well as non-economic loss. The amount of non-economic loss recoverable is capped by legislation.
The amount of damages payable by a defendant may be lessened if they can prove that they tried to make amends by making a public apology or publishing a correction.
If you are accused of defamation, or would like to make a defamation claim, please obtain legal advice from a defamation lawyer.