The Definition of a Defamation

Defamation is not just a matter for celebrities, it can significantly affect the ‘average’ person or small business.  As the old adage goes: ‘sticks and stones may break my bones, but words will permanently damage my career prospects and affect my wellbeing’.  Okay, admittedly, this is not the precise proverb; however, in a legal context, it is an apt amendment.

At law, defamation is defined as a loss of reputation by information being published or distributed which is harmful to a person’s reputation in either a personal or professional capacity.

Defamatory material can take a variety of forms, including written, visual and spoken materials, such as news articles, social media posts, radio programmes and public addresses. Whether questionable material rises to the level of being defamatory, perhaps unsurprisingly, is an issue parties often have opposing views on.

Has defamation occurred?

For a claim for defamation to succeed in the ACT, you or your small business will need to show that:

• You have been identified as the subject of the statement or defamatory material;
• The material was published or verbally communicated;
• The material is not substantiated by facts;
• The material caused injury or loss to your reputation; and
• The material is not covered by any of the defences available in the ACT.

Are there defences to defamation?

Yes.  Valid defences to what would otherwise be defamatory material may exist, if the following applies:

1. If the statement is true or substantially true, then a defence is that the comments were justified;
2. If the material contains statements some of which are true, and others that are untrue but the untruthful statements are not deemed to cause further reputational harm, then the defence of contextual truth may arise;
3. If the statement is made in court proceedings or parliament, then the statement should be covered by absolute privilege.
4. If the statement is published by the Court ,or parliament, and is relevant to an open and transparent political and legal system then the statement is considered a publication of public documents;
5. If the statement was published in a report on public proceedings, and may reveal private information, the statement should be a fair report of proceedings of public concern;
6. If the statement was published for a particular recipient who had an interest in the matter then an available defence is qualified privilege for provision of certain information;
7. If the statement is an honest opinion of public interest, rather than a statement of fact, and was based on proper material, then the defence of honest opinion may arise;
8. If the statement was made by an employee or agent who was not aware the information was untrue, and was not due to negligence, then the defence of innocent dissemination may arise;
9. If the statement is such that it is unlikely to cause any harm, then the defence of triviality may arise.

You think you have suffered defamation, what next?

There is a strict requirement in the ACT to bring any action for defamation within one year.

You also cannot repeatedly sue.  That is, you will only have ever a single cause of action for defamation against one person or entity. This means even if someone repeatedly publishes or communicates defamatory untruths about you, you can only sue once for the totality of this conduct rather than starting a new claim for each new breach of defamation laws.

What’s in a word? Don’t be confused over terminology: slander and libel do not have distinct meanings for the purpose of defamation.

There are different remedies available if you have a claim for defamation. If you have concerns about whether you have been defamed, or about your organisation’s compliance with publication content, please get in touch with our Litigation & Dispute Resolution team at BAL.