Defamation Lawyers Melbourne
Elements of Defamation
If you ever wondered what defamation law is, the elements of defamation is not a recent legal invention. In fact, defamation began as early as eleventh century – back in time when Knights and Princes rode in horses with shining armour.
Do you know what the old courts said back then about defamation? They said, “Thou shalt not go up and down as a tale-bearer among the people”.[1] Hard to understand right? In our opinion, we think it means, don’t tell fibs about other people. But importantly, it is exactly these kinds of words that brought the beginning of defamation law that we understand today.
Today, we now have statutes that have modified and codified defamation law. In Victoria, this is called Defamation Act 2005 (VIC). Every other State and Territory has passed a similar set of Act:
- Defamation Act 2005 (NSW)
- Defamation Act 2005 (SA)
- Defamation Act 2005 (QLD)
- Defamation Act 2005 (WA)
- Defamation Act 2005 (TAS)
- Defamation Act 2006 (NT)
While some would say these State-based laws constitute Uniform Defamation Law, there are some differences between them. While not exactly Uniform, it is almost there. [2]
We hear defamation law all around us, but what does it all mean?
Defamation is all about communication and what is communicated. If there is a defamatory statement harming the reputation of another person, then this may constitute defamation.
We have broken it down into these important parts:
- the statement must be communicated to other people;
- the statement identifies or can identify the person defamed; and
- the statement published is of defamatory nature.
You might look at these parts and wonder:
- what is identification?
- what is published?
- what is defamatory nature?
They are very good questions, because many case decisions have also tried to define them.
In a nutshell, we try to explain them:
What is Publication?
Publication can happen when a statement is said to other people. [3]
If you want to check whether you have been defamed, you must ensure that the statement was said to other people, other than yourself. Why? Because your reputation cannot be harmed if the statement is said only to you. [4]
Identification, and who are we identifying exactly?
The statement must identify you, as the defamed. This is quite straightforward, however what happens if a statement does not specifically state your name?
Well, then it boils down to whether there can be identification by the content of a statement.[5]
For example, a statement can have content that lead others to believe you are being referred to:
a) The President of Country Z is a thief.
Answer: If people know country Z, then the person as the President can be easily identified.
b) The Person selling hot dogs at the stand in address Y, is a liar.
Answer: It goes without saying that, with the right context, that person can be easily identified.
c) The Man living alone at address X during date P, is a crook.
Answer: With this kind of information, anyone can reasonably identify that person, even though they do not know that person’s name directly.
When is a statement, defamatory?
Whether something is defamatory is determined by this test:
Do the words “tend to lower the plaintiff in the estimation of right-thinking members of society generally.”[6] While this might be difficult to understand, it generally means whether a statement will likely cause people to view less of you because of that statement. This is important because it becomes a critical part of a defamatory case.
We recommend each element should be assessed and checked off.
If there is defamation, when should you decide to bring this to Court?
Negotiation is generally preferred before heading to Court. Court is expensive, and time consuming whereas negotiation can lead to better outcomes and result.
But, not all negotiations lead to better outcomes, and sometimes Court proceedings might be the only option left on the table. Therefore, it is important to know that there are time restraints called “limitation periods.” These are time limits of when you need to bring a defamation claim to court. Generally, a claim must be made within one year commencing from the date of the publication of an alleged defamatory statement.[7]
While special circumstances can arise for an extension, the threshold to be given an exception is high. You will need to show that it was “not reasonable” for you to not have commenced an action for defamation within that one-year period.[8]
This test might be quite the challenge to meet.
You bring a claim within one year, how can the other person respond?
Say that you do bring a claim in court, then the person, who made those defamatory statements, would generally defend against those claims. These are typically called “defences.” If a defence is established, then the defamation claim will most likely not succeed in trial.
Some defences include:
- Truth-related defences;
- Defences of Privilege;
- Defence of Innocent Dissemination; and
- Defence of Triviality
Depending on what defence is raised, they will need to satisfy different sets of criterions. For example, one common type of a truth-related defence is the defence of justification, a experienced Defamation Lawyer Melbourne will be able to advice you.
So, what is the defence of justification, exactly?
A person can raise the defence of justification, in response to a claim of defamation, if they can show that their statements are substantially true.[9] This means that, if the statement is not 100% true, but could be, almost true, then that should be sufficient to not be defamatory.
It is a blurry line to assess what is substantially true. We recommend before considering making any statements that could be potentially defamatory, to make sure to get the facts right.
What does this mean for me, as the person defamed?
If you are ever defamed, make sure to have written records, or some form of documentary evidence. It is often the case that the person making a statement could edit the records.
For example, what if a statement was made in a forum? Or a newspaper? Edits happen all the time to the original statement. By documenting it, you make the person accountable for their statement.
Afterwards, always make sure to determine that the statement sufficiently constitutes defamation. Seek advice, so that proper assessment can be conducted.
And what does this mean for me, as the person making a statement?
As a person making an adverse statement about someone, you must always verify the facts of that statement. Always fact check, and fact check again.
If someone does bring a claim against you, immediately seek advice. There may be a defence that you can raise to stop the claim. At the end of the day, it is important to recognise that not all statements can go unscathed.
Remember, your reputation means a lot to us and if you believe you have been defamed due to a publication, or if you have been accused of publishing defamatory material and threatened with an action for defamation, then please get in contact with our Defamation Lawyers Melbourne and we will try our very best to protect your reputation and achieve an outcome for you that you deserve best in the circumstances.
If you have any queries concerning a potential defamation matter, contact us Our Defamation Lawyers Melbourne may be able to help in addressing those concerns.
Important disclaimer: The material contained in this publication is of a general nature only and it is not, nor is intended to be, legal advice. This publication is based on the law as it was prior to the date of you reading of it. If you wish to take any action based on the content of this publication, we recommend that you seek professional legal advice.
[1] Geoffrey Robertson and Andrew Nicol, Media Law (Thomson Reuters, 5th ed, 2007) 95.
[2] Des Butler and Sharon Rodrick, Australian Media Law (Thomson Reuter, 5th ed, 2015) 34.
[3] Webb v Bloch (1928) 41 CLR 331, 363-6.
[4] Pullman v Walter Hill & Co Ltd [1891] 1 QB 425.
[5] Jones v E Hulton & Co [1909] 2 KB 444.
[6] Berkoff v Burchill [1997] EMLR 139; Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 (2009) 238 CLR 460.
[7] Limitation of Actions Act 1958 (Vic) s 5(1AAA).
[8] Ibid s 23B.
[9] Reynolds v Times Newspapers Ltd [2001] 2 AC 127, 192.