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NSW Cease and Desist Letter for Alleged Defamatory Facebook Posts?

Discussion in 'Defamation Law Forum' started by Maree Fish, 7 December 2017 at 8:36 PM.

  1. Maree Fish

    Maree Fish Member

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    Hi,

    My partner has received a letter for defamatory comments. In the letter it doesn't say what the comments are, no documents were attached. (Some of it doesn't actually make sense and they called it a cease & assist,lol)

    The letter says:-

    We advise that we act on behalf of ..... who has sought our advice in respect of comments and statements that you have been making about him to members of the community and previously on Facebook posts. We have copies of those documents and it is clear that the wording that you have used is grossly defamatory to our client and her reputation has been damaged in the community.

    We suggest that you immediately cease and desist from making any such further defamatory comments and our client with otherwise leave her comments open as to what action she takes further in the matter.

    1- Can a firm say that they copies even if they don't?

    2- Can I request these for a better understanding of what comments have been made that are accused of being defamatory?

    3- Can I say that if it's taken further I will pursue cost?

    4- That it's actually both of them, as he actually contacted my partner last & my partner told him to leave him alone? And also requested a few years ago for a mediation session which was never taken up.

    *comments were made over 12 months ago, therefore, any of these cannot be used I am assuming,
    only comment we have been able to find is saying ***is a mole & their friend ** is a dick in a private message to someone else, which may of been leaked.

    Hope this makes sense :)
     
  2. DMQC

    DMQC Well-Known Member

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    Hi Maree,

    Defamation law is tricky, however the basics of it is as follows -

    1. There must be defamatory matter i.e. it must harm a persons reputation.
    2. The person must be able to be identified, either directly or indirectly from the publication.
    3. The matter must be published

    An insult is not defamatory as it does not harm a persons reputation, the comments you have provided above would need a "because" to be defamatory - i.e. X is a mole because he done XYZ. So it does not seem that there is defamatory matter from what you have mentioned.

    To answer your questions:

    1. It isn't really an issue if the firm does or doesn't have a copy of the defamatory matter given, if they don't, they wouldn't be able to pursue the matter anyway. I can't foresee much of an issue on the point, perhaps a bit unethical on their part.

    2. You can certainly request more information, and if I were you I would want to know what the issue was if I was unaware, however if I had an idea what it was about I wouldn't really see the point.

    3. This is a given since any legal action poses a risk of costs to the plaintiff as well as the defendant. You can say it, but they would (hopefully) already know this is a risk.

    4. Alas, two wrongs don't make a right, however it would be open to you to counter-claim for the defamation to your partner if they chose to pursue an action.

    For what its worth, a couple of extra points:

    1. Defamation is actionable even if the person does not suffer damage to their reputation, that is a person does not have to show their reputation was actually damaged, just that it could be damaged by the defamatory matter.

    2. Facebook posts are, contrary to popular belief, grounds for defamation. There was a recent case where a Police Officer charged a person for creating a Facebook group about the Officer, the group was called "Officer X is a c**t" or something like that - note this was criminal defamation and not really an issue here, but the fact the Facebook posts were considered defamatory matter is relevant to your situation.

    Hope that helps
     
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  3. Rod

    Rod Well-Known Member

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    Also note that statute of limitations on defamation is quite short. Often 12 months from date of publication but a couple of rules means it can be extended to 3 years.
     
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  4. DMQC

    DMQC Well-Known Member

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    Good point Rod, it is 12 months in Victoria and can be extended up to three years pursuant to 32A of the Defamation Act, forgot about that. Cheers
     
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