DEFAMATION LAWYER

Is it worth suing for defamation?

Defamation matters can be lengthy, confusing, and costly. Recent high profile defamation cases involving large sums being paid to celebrities such as Geoffrey Rush and Rebel Wilson have however highlighted the importance the law places on a person’s reputation. It is therefore critical to seek expert legal advice about whether a defamation action is right for you and to ensure the best outcome in your dispute.

Defamation law differs across Australia, depending on the Defamation Act in force in the relevant State jurisdiction. Generally, defamation occurs when a person’s reputation (or the reputation of a small business) is damaged by information that is published to one or more third parties.

To succeed in a defamation claim, you must prove three things:

1. information was published to a third person that;
2. identifies you; and
3. the information was defamatory – meaning it must negatively impact (“lower”) your reputation in the eyes of the third party.

The law of defamation, therefore, requires you to demonstrate that information was “published” which clearly identifies you or your small business, and that the information contains defamatory imputations. Defamatory “imputations” are the basis of a defamation case. An imputation is simply a defamatory statement, either express or implied, that says something about your reputation that causes it damage in the eyes of the third party.

Note: under Australian defamation law, only individuals, certain not-for-profit organisations and companies with 10 or fewer employees are able to sue for defamation.

Defences to a successful defamation claim

There are a number of defences to a defamation claim, which a defendant can argue even if defamation is proven. If a defendant successfully argues one of these defences, this will reduce or eliminate any entitlement to compensation.

Some of the common defences to a defamation action include:

1. Truth: if the information is substantially or wholly the truth, then the information cannot be defamatory;
2. Triviality: if the information causes a trivial amount of damage (such as being published to a very limited audience), this will reduce or eliminate any entitlement to compensation;
3. Innocent dissemination: this will be a defence if the publisher was publishing information created by someone else and did not know that the information contained defamatory material;
4. Honest opinion: if it can be shown that the information was an opinion, rather than expressing a fact, and that opinion was based on proper material and is a matter of public interest, this will establish a defence;
5. Public interest: if a media outlet publishes something that is of public concern or public interest, this may be a defence to the publishing of any defamatory statement;
6. Absolute privilege: if the defamatory content attracts absolute privilege, this defence can be relied upon;
7. Qualified privilege: where both parties have an interest in the communication, there may be a defence of qualified privilege. Note that there are different tests under common law and statute in order to raise this defence.

Navigating these defences and whether they might apply to your defamatory matter is notoriously difficult, and it is recommended that you seek expert legal advice about how these defences might affect your case.