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