‘You can’t say that!’ – The law of Defamation

Freedom of speech is often touted as one of the most fundamental human rights. But that freedom is not absolute, and a person can face legal and costly repercussions if they ‘publish’ any remarks deemed to tarnish the name or reputation of another.

Freedom of speech is often touted as one of the most fundamental human rights. But that freedom is not absolute, and a person can face legal and costly repercussions if they ‘publish’ (in the broad sense of the word) any remarks deemed to tarnish the name or reputation of another. This is what’s known as ‘defamation’.

In today’s electronic world where people author, post or send out internet material including photos, emails and blogs, they must be more conscious than ever not to get caught in the world wide web of defamation, even inadvertently. Interestingly though, this does not apply to publications of defamatory matter about deceased persons, over which no legal action can be brought.

Defamation court proceedings can be expensive, and depending on the extent of any financial loss alleged to have been caused by the defamatory act/s, the cost of litigation may well eclipse any award for damages. If you believe you have been defamed in any way, pursuant to the Defamation Act 2005 (Vic) (the Act), you may issue a ‘concerns notice’ to the person who published the defamatory matter, thereby inviting them to make amends to you by, for example, publishing a correction of the defamatory remarks, offering to pay any reasonable expenses incurred as a result of the defamation, and making an apology. In this way the matter can be resolved without the need for court intervention. If, however, you choose not to accept the proposed offer to make amends, you may reserve your right to issue court proceedings against the ‘publisher’ of the defamatory material.

The Act prescribes a number of defences to the publication of defamatory material, including:

  1. The defence of justification:  It is a defence if the publisher can prove that the defamatory remarks are substantially true.
  1. The defence of absolute privilege: It is a defence if the publisher can prove that the material was published on an occasion of absolute privilege (such as in the course of legal proceedings).
  1. The defence for publication of public documents: It is a defence if the publisher can prove that the material was contained in a public document (such as a newspaper or parliamentary report).
  1. The defences of fair report of proceedings of public concern: It is a defence if the publisher can prove that the material was in a fair report of any proceedings of public concern, published honestly for the information of the public or the advancement of education (such as a report warning the public against health risks associated with something).
  1. The defence of honest opinion: It is a defence if the publisher can prove that the material was an expression of the publisher’s opinion rather than a statement of fact and that opinion is based on proper material.
  1. The defence of innocent dissemination: It is a defence if the publisher can prove that they published the material on behalf of another party, not knowing that it was defamatory.
  1. The defence of triviality: It is a defence if the publisher can prove that the subject matter of the material is trivial in that the aggrieved person is unlikely to sustain any harm from its publication.

It is worth noting that it is not a defence to claim that the defamatory material was published ‘by accident’, for instance, an email that included wrong recipients or that was intended to be kept private but which was inadvertently sent out.

If defamation is proven in court, and no defence is successfully argued in respect of the defamatory material, then the aggrieved person will be awarded damages to compensate for losses incurred as a result of the defamation, and in limited cases, also damages for non-economic loss such as distress. Costs would also follow the event, meaning the successful party would generally obtain an order for their costs to be paid by the unsuccessful party taxed according to the court scale of costs.

If you believe you could be the victim of the publication of defamatory material resulting in financial loss to you, or alternatively if you are the publisher against whom claims of defamation are made, then please contact Steven, Angela or Lynda for a complimentary consultation and have a full and frank discussion about your options. 

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