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NSW Defamation in Newspaper from Ex-spouse

Discussion in 'Defamation Law Forum' started by Jane81, 23 November 2015.

  1. Jane81

    Jane81 Member

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    I have a situation where one spouse has contributed to a news article that speaks about the 'abuse' she received from her ex and how affected she is. The abuse did not happen and cannot be proven. It is clearly an article about the defamed person as her photo sits with it (poorly shadowed) and describes exact events that have happened. It has also been shared within a secret group on Facebook that she belongs to and her name has been mentioned in the comments.

    The article has had the names of her and the defamed person changed, but it is undeniably her.

    She makes claims of him having a 'mistress', however, he was separated at the time. Made claims about him writing off his motorcycle which wasn't the case as I actually rode it for him not long after. She made claims that during the bike accident, he was on drugs which were not the case. Alcohol was involved, but the police report had no indication of drugs. There were also claims about abuse and etc, to which there are no police reports and never happened in the first place (only psychologists to confirm she is crazy from this 'abuse').

    She is simply writing a mean article with false information. Can anyone shed some light on this?

    My concerns are, the name isn't specifically mentioned for either party. There is another mutual contact who has made a contribution to the article who is named - can he or the author be forced to name her to prove it was her contribution of defamation about person?
     
  2. Louise4007

    Louise4007 Well-Known Member

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    Generally defamation includes false, bad reports about a person/ company /organisation that results in harm, loss or damage to reputation in a sense that people avoid them and/or their work/profession is affected. The defamation must be significant enough to cause this level of harm, loss or damage to be awarded any compensation.

    To establish defamation proof of
    • words/statements having a defamatory meaning intended to harm,
    • identification of the person/organisation possibly being named or referred to in some manner and
    • the material is published/heard/seen by a 3rd person
    is required.

    Evidence of the 3rd person's statement & its' actual intended meaning may be required if the defamed person decides to sue, especially if it would assist the case by establishing proof. Contact a lawyer for expert advice.
     
  3. Jane81

    Jane81 Member

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    Does it make it harder when there are no specific names of the two parties? In general do you know what would count as substantial proof - i.e. proof that he was involved in the same circumstances that have been described?

    Can the court order the publisher/journalist to provide the names as evidence?
     
  4. Tim W

    Tim W Lawyer

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    Are you the defamed person?
    Or are you the person about whom the story was written?
    Or somebody else?
     
  5. Jane81

    Jane81 Member

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    Someone else, close to the defamed person.
     
  6. Louise4007

    Louise4007 Well-Known Member

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    Hi again

    It would be difficult to maintain a case against a person in defamation without specific identification by name or reference to the allegedly defamed person. This element is only one proof requirement for an act of defamation to meet the criteria of an offence under section 529 (3) Crimes Act (Commonwealth). Law also considers freedom of speech in weighing up whether a defamatory act has occurred. Offenders, if found guilty of the most serious offences can be liable to a maximum term of 3 years imprisonment.

    The defamed person (plaintiff) needs to prove they have been defamed whilst the defendant is entitled to a defence which they also need to prove in order to succeed.

    Before making its' final decision, the court may request further evidence depending on the seriousness of the offence.
     
  7. Tim W

    Tim W Lawyer

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    It's important to understand that any action for defamation is more likely to be brought as a civil action* in the state where the publication (mainly) occurred, and less likely to be a prosecution by the Commonwealth.

    I would add that if a person, whose identity is concealed, is "reasonably likely to be identified",
    then that increases the likelihood that the person about whom the remarks are made, will also be identifiable.

    One other thing - the only person who can bring a defamation action is the person who feels they have been defamed.

    -------------------------------
    * lawyers call this "an action in tort". It's a civil, rather than criminal, proceeding.
     
    Louise4007 likes this.

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