Defamation

Under the Victorian Defamation Act 2005, someone has been defamed if their reputation has suffered harm following the publication of material that describes or depicts the victim in a negative light, and that this publication was unjust in nature or not made in the public interest. Publication, for the purposes of defamation law, refers to speaking, writing, drawing, photographing, blogging, etc.

For defamation to have occurred, the victim does not necessarily have to have been mentioned specifically by name. Defamation may also occur accidentally, such as when a publication was made without the intention of causing harm to anyone’s reputation.

Victoria Legal Aid is a state-run organisation that can provide legal assistance or information to Victorians who don’t have the means to procure the aid of a legal professional operating in the private sector. Victoria Legal Aid can provide legal advice about defamation law in this state.

As defamation is a tort, or civil wrong, litigation takes the form of civil legal proceedings between two independent parties, rather than between the state and the defendant as would be the case with criminal law.

There are legitimate defences for defamation, and those accused of defamation in court may be able to defend themselves by proving that the information they published is in fact true, or otherwise in the public interest.

It is expensive to commence defamation action in court, it is also expensive to defend against a defamation claim.

If you wish to sue for defamation, or you are faced with a defamation case yourself, it is important that you obtain legal advice to ensure that a satisfactory outcome is achieved under the circumstances.

What is defamation?

Defamation refers to the communication or publication of material which negatively affects the reputation of another entity or individual. The defamatory communication may occur as the result of a deliberate and unjustified attack on the reputation of another person or organisation, or it may occur accidentally, without intent to cause harm.

Defamation is governed by the Victorian Defamation Act 2005 , which came into effect on 1 January 2006. Under the Act, defamation is unlawful and constitutes grounds for legal action. The function of the Defamation Act 2005 is to uphold the good reputation of individuals and organisations by creating a deterrent to unjust defamation as well as providing compensation to those who have been defamed.

Traditionally, there are two types of defamation:

  • Slander – defamatory communications that exist in transient formats, such as spoken words.
  • Libel – defamatory communications that have been published in a more permanent format, such as photos or other visual media, writing etc.

Under the Victorian Defamation Act 2005, as well as defamation legislation in other states, there is no longer a legal distinction between libel and slander. Activities defined as libel and slander under previous acts are now collectively known as defamation.

There are strict time limits involved when making a defamation claim. You should seek legal advice as soon as possible upon becoming aware of that you may have been defamed.

Communication is defamatory when:

  • It has damaged, or is likely to damage, the plaintiff’s reputation by causing them to be hated or ridiculed;
  • It is likely to result in the plaintiff being shunned, shamed, or avoided;
  • It is likely to lower the plaintiff’s standing in the eyes of reasonable individuals.

Defamation has occurred when:

  • Defamatory communication has been made/published to a third party;
  • This communication concerns or identifies another person or entity (the plaintiff in a defamation case);
  • The communication or publication of the defamatory content occurred without lawful excuse.

If I am accused of defamation, what must be proven for me to be found liable?

If the plaintiff is able to demonstrate that the above conditions are true in a defamation case against you, you will be liable. More details about these conditions can be found below.

  1. Communication/publication

You must have first published or communicated something to be liable. These words are broadly defined for the purposes of defamation, basically to include any display of communication, whether visual, written, or verbal. Commonly, defamatory communication occurs in mainstream media, such as newspaper articles or radio broadcasts, or the displaying of signs for example. For defamation to have occurred, only a single person despite the communicator and the person being defamed has to have witnessed the communication.

  1. Defamatory matter

The plaintiff must be able to demonstrate that the communication or publication contained ‘defamatory matter’, which is defined under the Victorian Defamation Act 2005 as communicated material that serves to damage the reputation or esteem of another entity or individual. Such matter may include blatant lies, false representation, or unjust speculation. This must be published in such a way that damages the plaintiff’s reputation in their area of employment or residence, or in the case of an organisation, their primary area of operation.  For defamation to be proven, the plaintiff’s reputation must have been lowered in the eyes of reasonable people in the general community. With this in mind, it is not advisable to publish allegations or criticism that can not be justified, or that are not in the public interest.

  1. The plaintiff

The plaintiff has suffered defamation if the published material identifies them. This identification may be direct, such as by title or name, or indirect, through the provision of other information that would cause a reasonable person to associate the material with the plaintiff. Usually, only individuals can be defamed. Under section 9 of the Victorian Defamation Act 2005 , groups cannot be defamed, nor can many corporations, unless they are non-profit or employ less than 10 employees.

  1. Absence of a lawful excuse

If you are found to have published or communicated the alleged defamatory material with a lawful excuse, you are not liable for defamation. Examples of such excuses can be found below under the ‘defences’ section.

Who can sue for defamation?

Living individuals may sue for defamation, as can entities such as non-profit organisations or corporations employing less than 10 people. Corporations or organisations suing for defamation must demonstrate that they have suffered financial detriment as a result of the defamatory communication.  Under the Victorian Defamation Act 2005, an individual or entity wishing to sue for defamation must do so within one year of the defamatory material being published. If circumstances meant that it was unreasonable for the plaintiff to commence litigation within the 12 months, extensions of up to three years from the date the defamatory content was published are available.

Who can be sued?

Anyone who participated in, authorised, or repeated the publication of defamatory material is liable for defamation, subject to the defences below.

Defences

If you are found to have published or communicated defamatory material, you may be able to demonstrate that one of the following defences applies, therefore ensuring you are not liable for defamation:

  • Opinion

Under section 31 of the Victorian Defamation Act 2005, an opinion that is honestly held, based on factual material that is stated in the communication, and that is made regarding current affairs or matters of public interest, does not constitute grounds for defamation. Opinions may be stated as observation or criticism, not as statements of fact. Reasonable opinions must be based on fact, and reference factual material when published.

  • Truth/Contextual Truth

Section 4 of the Act states that substantial truth constitutes a defence against claims of defamation. Under section 5 of the Act, contextual truth refers to a situation where the plaintiff is affected by a number of comments within a defamatory publication. So long as the most damaging ones are proven to be true, the truth defence may be raised by the defendant (contextual truth). Proof of the facts is required to establish this defence, however, it is not required that the publication be proven to be in the public interest if the publication is substantially truthful.

  1. Public Document

A public document is one that is published by the government, or one of its branches (such as a court or tribunal). The content of these public documents can be published without an risk of creating a liability for defamation.

  1. Fair Report

If the defendant has published a balanced and fair report of any proceedings that are of public concern, they may be raise this as a defence against a defamation claim brought against the report.

  1. Innocent Dissemination

If the defendant is found to have distributed a defamatory publication, without having control over or input into its content, they are defended from be  

8. Qualified Privilege

If the defendant has an obligation, whether social, legal or moral, to communicate or publish something to a third party, they may be defended from any liability by qualified privilege protections under the Act. For example, providing an employment reference may constitute a circumstance where you communicated defamatory material but may be protected by qualified privilege. This defence does not apply if the comments made in the communication are malicious in nature. Only comments that are reasonable under the circumstances are protected by qualified privilege.

9.Absolute Privilege

Communications made in a court or during parliamentary debate can be published with immunity, as they are subject to special privilege.

ing liable for defamation. This defence usually applies to distributors such as  internet service providers.

  1. Triviality

This defence applies if the content of a defamatory publication is unlikely to cause the plaintiff any significant detriment.

Multiple Publication Rule

Under the Act, the multiple publication rule applies to defamation. This means that each time a defamatory publication or communication is made, a new cause of action is created.

Remedies

You may be able to reduce your liability by retracting or deleting content that contains defamatory material. Issuing an apology and/or statement of clarification may also reduce your liability.

The most common remedy in defamation cases is the awarding of monetary damages. Damages may be awarded for economic loss as a result of defamation, or for hurt feelings or general damage to esteem.

In some cases, it is possible to defend against a claim of defamation by demonstrating that you made a reasonable offer of amends to the plaintiff, which they refused in favour of legal action.

Always ensure that any content you publish or reproduce does not contain material that may cause unjust damage to the reputation or esteem of another person or entity. Do not publish unsubstantiated allegations, in the event that you find out something you have published is incorrect or not based on evidence, withdraw it immediately and offer an apology. Defamation is a serious offence, that may occur out of negligence or without intention to cause harm. Court proceedings for defamation are expensive, no matter which side of the case you are on. In the case that someone has been defamed, it is highly advisable that amends be made out of court. Refusal to accept a reasonable offer of amends can derail a defamation accusation.

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