YOU CAN’T SAY THAT!

Media publicity surrounding high profile cases brought by Ben Roberts-Smith, Rebel Wilson and Geoffrey Rush have increased attention to defamation law. 

Simultaneously, the rise of “Google reviews” and social media has meant it is easier than ever to inadvertently defame someone.

Here, we explore the basics of defamation and what to do if you find yourself the subject of or responsible for an alleged defamatory publication.

What is defamation?

Defamation means causing or potentially causing serious harm (or serious financial loss in the case of a company) to a person’s reputation in the eyes of an ordinary, reasonable person by publishing material (including written, spoken or photographic material) about them.

To establish defamation under the Defamation Act 2005 (Vic) (Act) you must prove that the allegedly defamatory material:

–  was published to a third party;

–  identified the person or organisation (you do not need to have named the person);

–  harms the person or organisation’s reputation; and

–  was not published for a lawful reason.

A deceased person cannot be defamed.

Who can take action if they are defamed?

Individuals, not-for-profit organisations and some companies including small businesses (with less than 10 staff) can sue for compensation or a public apology. 

A proceeding for defamation can only be made after the expiration of 28 days following a formal Concerns Notice (which must comply with the requirements of the Act) is served on the publisher of the defamatory material.  The imputations identified in the Concerns Notice must form the basis of the claim when issuing proceedings.

In Victoria, proceedings must usually be issued within one year of publication to avoid being statute barred. The “single publication rule” provides that the limitation period for online publications starts when the material is uploaded or sent to the recipient.

Usually, large companies are unable to sue under the Act but may have an action for damages for loss arising from injurious falsehood.  To prove injurious falsehood, a company would need to prove that the statement made:

–  was false;

–  was published to a third party;

–  was made maliciously; and

–  caused damage.

Defences to a claim for defamation

Defences to a claim for defamation include:

–  truth;

–  honest opinion;

–  qualified privilege where the person had a legal duty to publish the material which was not malicious; and

–  public interest, where the person had a reasonable belief that it was in the public interest to publish the material.

It is understandable in circumstances where you may feel you may you have been defamed to feel aggrieved and want to pursue a claim.  However, it is imperative that advice as to your position at law and the commercialities around defamation litigation be sought as early as possible.  It may be that issuing a Concerns Notice may achieve your objective of having the publisher held to account and for them to remedy the harm caused. 

If we can assist you with a defamation claim, or responding to one, please contact Kaye Griffiths, Senior Associate by email at Kaye.Griffiths@lewisholdway.com.au or by telephone on 0412 083 513.