---

Defamation, Defamation of Character, Defamatory Statements

---

Defamation and defamation lawsuits

Defamation occurs when an individual communicates to a third person, a matter which unfavourably affects the reputation of another. It is a type of tort which protects a person’s reputation. It is not concerned with the hurt feelings of the aggrieved. Therefore, you do not defame someone only by insulting another. For defamation to be found, there must be a communication to at least one other person, whose opinion of those defamed will have been reduced, that damages the reputation of the aggrieved in the opinion of a reasonable person.

Defamation in Queensland is governed by the Defamation Act 2005. Similar legislation has been enacted in all states and territories. Prior to the creation of the Defamation Act 2005, it was included in the two torts of libel and slander.

What is defamatory?

A defamatory statement is one that is likely to lead to a reasonable person to think less of the person about who the statement is made. What is relevant is the opinion of those to who the statement or statements are made of those who have been defamed.

Whether or not a statement will be considered defamatory depends very much on the context in which the statement was made. A statement that relates to a person’s profession or trade can also be considered to be defamatory.

Defamatory statements

A defamatory statement can also arise through the implied meaning of words used in the statement. If you believe you have been defamed, some matters to take into account include:

• You must show that the statement or words used referred directly to the aggrieved party.
• Any person can bring an action in defamation.
• A corporation cannot bring an action unless it has fewer than 10 employees and is not connected to another corporation or is created for the purposes of financial gain.
• The aggrieved need not be named directly to be identified.
• You must prove that the defamatory statement was made public.
• Liability is usually strict, it is irrelevant whether or not the individual intended to defamed the aggrieved.

Defences to defamation actions and offers of amends

Various defences are available if a defamation action is brought against you or brought against another person. The defences available include:

• Justification – it is a complete defence to show that the statement or words used are substantially true.
• The statement contains additional attributions that are proved to be true – the defence of contextual truth.
• The statement was an honest opinion
• Privilege, which can be absolute, or qualified.
• Offer of Amends – a person has 28 days to make amends to the aggrieved person once notified of the complaint. This can take the form of an offer and must include certain requirements, including an offer to publish a correction or apology and to pay the costs of the aggrieved person.
• Triviality, it is unlikely that the aggrieved would suffer any harm.
• Defences and Interstate Publication, if the statement has been posted on the internet it is only regarded as published where that material has been downloaded. Generally the aggrieved can only bring one action in one state, not multiple actions.

Remedies for defamation

If you have been defamed, the most common remedy to seek is an award of damages. These are generally awarded to compensate the aggrieved for the damage done to his or her reputation. The legislation imposes limits on the amount of damages that can be awarded.

Various factors can be used to mitigate and therefore reduce the amount of damages awarded. These can include the publisher’s belief in the truth of the statement, the fairness of what has been said or whether or not the statement was the result of provocation. The publisher could also argue that the aggrieved did not have a high reputation previously. The publisher can also look to make an apology to the aggrieved or to publish a correction of the defamatory statement.

If the publisher of the statement has effectively done more damage to the aggrieved between the publication of the statement and the trial, aggravated damages may also be awarded.

An aggrieved person can also apply for an injunction to prevent further publication of the defamatory material.

Court proceedings

Court proceedings can be brought in any state court such as the Magistrates, District or Supreme Court.

If you believe you have been defamed or someone is threatening to sue you, or has sued you, Aitken Whyte Lawyers can assist in your defamation claim.

Office Location and Contact Details

Brisbane

Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000

Ph: 07 3229 4459
Fax: +617 3211 9311
E: enquiries@awbrisbanelawyers.com.au