Defamation occurs when something written, said or published about a person or business has the effect of damaging their reputation (whether intentionally or unintentionally). In Queensland, the Defamation Act 2005 (Qld) (the Act) applies.
A claim for defamation may be made when:
- something has been published that identifies a person (usually verbally or in writing);
- the publication is heard or seen by at least one other person; and
- the publication has caused, or will cause, serious harm to the person’s good reputation.
More detailed information about defamation can be found here.
An exception to defamation law is that companies (excluding not-for-profits) with more than 10 full-time equivalent employees cannot sue for defamation. However, the claim of injurious falsehood may be available when the publication is untrue and intends to cause harm.
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How can someone be defamed?
The most common platform for defamation to occur is the internet. Various aspects of the internet can be used to publish defamatory matter, including comments in social media and blog posts.
Other platforms for publication include radio, television, newspapers, magazines, emails, text messages, books, paintings, cartoons, songs and speech (including between family or friends, and at a person’s workplace).
How we can help you
Commencing a defamation claim
If you believe that you have been defamed, our experienced defamation lawyers can work with you to commence a claim of defamation.
The first step in bringing a defamation claim against someone is to send them a “concerns notice”. A concerns notice will usually demand that the publication be retracted, the payment of compensation to you, and your reasonably incurred legal fees to be paid.
The primary purposes of a concerns notice are to:
- identify the defamatory imputations that have caused you serious harm;
- provide the other party with an opportunity to make amends;
- attempt to mitigate your losses; and
- assist in an argument for an order that your legal fees be paid, if the matter goes to trial.
We offer you a fixed-fee concerns notice for one publication, and will provide an estimate if there are multiple defamatory publications or authors.
If your case goes to trial and is successful, and you have acted reasonably throughout the proceedings, you will usually receive an order for most of your legal fees to be paid by the losing party, though the judge has the ultimate discretion.
Trials in defamation matters are rare because in most cases the offending party will offer to issue a retraction, an apology and pay for any legal fees you have reasonably incurred, especially when there is a threat of proceedings.
The next step, if a concerns notice does not resolve the issue, is to file court documents containing the allegations of defamation, then wait for a defence to be filed (if any). You may then go through disclosure, necessary applications and mediation, and if your case cannot be resolved, it will then proceed to trial.
If you are an individual, charity or company with fewer than 10 full-time equivalent employees, you will generally have one year to commence a defamation claim from the date a publication is made. On rare occasions, an extension of two to three years may be granted. In the case of injurious falsehood claims, you have up to six years from a publication date to commence a claim.
Defending a defamation claim
If you have been accused of defamation, our defamation litigation team can offer you legal advice and representation.
If you are accused of publishing defamatory material, you will first receive a concerns notice.
If you receive a concerns notice or court documents, it is important to immediately seek legal advice. Issuing a reasonable offer to make amends is critical unless your lawyer considers the matter is baseless, or another reason applies in the circumstances.
Under the Act, an offer to make amends must:
- be in writing;
- be easily identifiable as an offer to make amends;
- state that the offer is open for acceptance for 28 days;
- specify if it only applies to some or all of the alleged defamatory imputations;
- offer to publish a correction of, or a clarification of additional information about, the defamatory matter;
- offer to take reasonable steps to tell anyone the publication has been given to that the matter is, or may be, defamatory; and
- offer to pay the expenses that have reasonably been incurred.
Other options include publishing an apology and offering to pay compensation.
Defamation matters are typically less expensive than other commercial litigation matters because disclosure is generally minimal and the arguments are generally quite refined. However, a defendant does have the obligation to successfully raise a defence.
File a defence
There are a range of defences that may be available to you for a defamation claim. These include:
- substantial truth;
- contextual truth;
- absolute privilege;
- qualified privilege;
- publication of public documents;
- fair reporting of proceedings of public concern;
- publication about a matter of public interest;
- scientific or academic peer review;
- fair comment;
- honest opinion; and/or
- innocent dissemination
If your defence is successful at trial, and you have acted reasonably throughout the proceedings, you could expect to obtain an order for most of your legal fees to be paid by the losing party.
Why choose Gibbs Wright Litigation Lawyers
Gibbs Wright Litigation Lawyers have experience in defamation disputes, and we work hard to offer legal solutions for real people – we understand you don’t have to be famous for your reputation to matter.
Whether you are commencing or defending a defamation claim, Gibbs Wright Litigation Lawyers, based in Brisbane, can help.
- Commercially viable outcomes
- Dedicated litigation firm
- Outstanding client satisfaction
- High success rate
- Direct contact with your lawyer
- Brisbane-based litigation team
Frequently Asked Questions
Defamation occurs where one person communicates material, by words, photograph, video, illustrations or other means, which has the effect or tendency of damaging the reputation of another person.
A lawyer should be engaged to handle a defamation matter promptly, given the risk of ongoing reputational damage, and that the law is technical and there are specific procedures and time limits which apply. Having an experienced lawyer in your corner providing you with practical advice can help achieve a resolution quicker, and with a minimum of stress and cost.
If you are commencing a defamation claim, a lawyer can help by drafting a concerns notice.
If you are defending a defamation claim, a lawyer can review the concerns notice or the court documents provided. If an offer to make amends is considered necessary, they can also help with drafting that, or with the issuing of an apology or an offer to pay compensation.
If these options do not resolve the matter, a lawyer can help take the matter to court.
Court proceedings can be costly, time consuming and stressful, so our lawyers at Gibbs Wright will always attempt to negotiate a resolution before recommending your matter be litigated in a court.
At Gibbs Wright, we work closely with you to determine the best plan for your particular circumstances, taking into account your finances and your expectations.
We will walk you through each step of the journey, which begins with a free initial discussion to assess the strength of your case and your legal options.
For example, if you wish to make a defamation claim, we can draft a concerns notice for a single defamatory publication for a fixed fee of $3,300 (including GST). You can request an estimate if there have been multiple defamatory publications.
We appreciate that having any false or misleading statements made about you can be stressful, particularly for publications that exist forever and may impact your future employment or business success. The sooner you act the better, not just because time limits apply, but because your reputation could be damaged further.
How we help
Where can we help you?
We are based in Brisbane, Queensland, but our services are available to clients Australia-wide. We are well versed in defamation matters, so whether you’re looking for a defamation lawyer in Brisbane or anywhere in Australia, you can call us today to let us handle your claim.
*Complimentary consultations are reserved for disputes over $250,000 and are subject to approval.