What is Defamation?
Defamation occurs when something written, said or published about a person or business has the effect of damaging their reputation (whether intentionally or unintentionally).
The most common platform for defamation to arise is the internet. All aspects of the internet can be used to publish defamatory matter, including comments in social media, blog posts and more.
Other platforms of publication include radio, television, newspapers, magazines, emails, text messages, transcripts, books, paintings, cartoons, songs, spoken defamation (including between family or friends, and at a person’s workplace) and more.
A claim for defamation most commonly arises when:
- Something has been published (usually verbally or in writing);
- The publication is heard or seen by at least one other person; and
- The publication damages a person’s good reputation.
An exception to defamation law is that companies (excluding charities) with more than 10 full-time equivalent employees cannot be defamed. However, the claim of Injurious Falsehood may be available when the publication is untrue and intends to cause harm.
Talk to a Defamation Lawyer today
We offer an initial, no cost, obligation-free consultation to assess the strength of your case.
Commencing a Defamation Claim
The best first step you can take in bringing a defamation claim against someone is to issue a Concerns Notice.
A Concerns Notice will usually require the publication be retracted, the payment of compensation to you, and your reasonably incurred legal fees to be paid.
The primary purpose of a Concerns Notice is to:
- Identify the defamatory accusations that have caused you harm;
- Attempt to mitigate your losses; and
- Assist in an argument for an order for all of your legal fees be paid, if the matter goes to trial.
We can offer you a fixed-fee Concerns Notice to ease the concern of costly legal fees, with flexible fee arrangements if your matter proceeds to court. We can also provide an estimate if there are multiple defamatory publications.
If your case is successful at trial, 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 the offending party will usually 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, after a Concerns Notice (if necessary), is to file court documents containing the allegations of defamation, wait for a defence (if any), 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 small company (less than 10 full-time equivalent employees), you have one year to commence a defamation claim from the date the publication is made. Sometimes, a two to three-year extension may be granted. In the case of Injurious Falsehood claims, you have up to six years from the publication date.
Defending a Defamation Claim
Typically, if you are accused of publishing defamatory material, you will receive a Concerns Notice, or in some cases (particularly when a person is self-represented) court documents, before any other warning is given.
If you have legal representation and the person bringing a defamation claim against you is self-represented, your prospects of success improve significantly due to the technical nature of defamation proceedings.
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.
Offer to make Amends
- Must be in writing
- Must identify that it is an offer to make amends
- Must specify if it only applies to some or all of the alleged defamatory imputations
- Must make an offer to publish a correction of the defamatory matter
- Must offer to take reasonable steps to tell anyone the publication has been given to that the matter is, or may be, defamatory
- Must offer to pay the expenses that have reasonably been incurred
- Publishing an apology
Defamation matters are typically less expensive than other commercial litigation matters because disclosure is generally minimal and the arguments are usually 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. Some of these are:
- Truth or Substantial Truth
- Contextual Truth
- Partial Justification
- Absolute Privilege
- Publication of public documents
- Fair Report of Proceedings of Public Concern
- Qualified Privilege
- Fair Comment
- Honest Opinion
- Innocent Dissemination
- ‘Polly Peck’ and ‘Hore-Lacy’
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.
Protect your Reputation
We offer legal solutions for real people. You don’t have to be famous for your reputation to matter.
If you’re a Plaintiff, we can draft a Concerns Notice for a single defamatory publication for a fixed fee of $1650 (including GST). You can request an estimate if there have been multiple defamatory publications.
There is very little downside to issuing a Concerns Notice and for most people, it is worth paying $1650 to attempt to have the publication removed, even if you don’t think you will want to take it further in the event that the other side is not willing to remove the publication.
We appreciate that having any false or misleading statements made about you can be very stressful, particularly for publications that exist forever and may impact your future employment.
The sooner you act the better, not just because time limits apply, but because your reputation could be damaged further.
Gibbs Wright Litigation Lawyers are here to help.
If you are defending a defamation claim, we can review the Concerns Notice or the court documents provided and provide you with an estimate of our fees – no obligation.