Defamation is a type of tort that looks to protect a person’s reputation.
Defamation occurs when:
The party sharing the communication is generally known as the publisher or defendant.
The aggrieved’s feelings are not a consideration for defamation. As such, you cannot defame someone simply by insulting them.
For a Court to find that defamation has occurred, there must be a communication:
The relevant measure is the opinion of those the statement is made to about the party that has been defamed.
Therefore, an aggrieved must prove that the defamatory statement:
A statement cannot be defamatory if it is made directly to the aggrieved and not shared with anyone else.
Whether a statement will be considered defamatory depends on the context in which it is made.
A defamatory statement can attack:
Defamatory imputations can arise from the implied meanings in a statement.
Without articulating it, a statement may lead a reasonable person to draw conclusions. These conclusions, or imputations, can be defamatory.
A single statement may include multiple defamatory imputations. The aggrieved should outline all imputations they believe exist that might:
If a matter goes to Court, the Court will determine what, if any, defamatory imputations exist. When determining this, the Court will consider the ordinary meaning of the words used. It will only deal with imputations a reasonable person would infer.
Our litigation lawyers have experience determining what imputations a Court will likely accept. If you have been defamed, contact us for legal advice on what steps to take to protect your reputation.
An important element of bringing a defamation suit is identifying the relevant parties. This includes the aggrieved, the publisher, and who the statement was communicated to.
For a statement to be defamatory, it must be clear who the statement is about. In Court, the Plaintiff must show that the statement is in direct reference to the aggrieved. Note, the statement need not name the aggrieved for them to be easily identifiable.
To bring Court proceedings, it is also necessary to identify the publisher. This can cause difficulties where:
Any individual can bring an action for defamation.
The only commercial entities that can bring an action for defamation are:
They must not, however, be connected to another entity:
An aggrieved must bring any claim for defamation within 12 months of publication. This is a relatively short limitation period.
If a publication has been made that damages your reputation, you should seek legal advice as soon as you can. Our litigation lawyers can take swift action to protect your rights.
In defamation claims, liability is usually strict. This means it is irrelevant whether the defendant intended to defame the aggrieved.
There are, however, certain defences available to you if you are sued for defamation.
Defences to defamation include:
It is a complete defence to show that the statement made or the meaning of the words used is substantially true.
It is a defence if the statement contains additional attributions that are proved to be true.
It is a defence that the statement was an honest opinion.
Absolute, or qualified privilege is a defence to defamation. Privilege allows parties in certain relationships to communicate frankly without risk of defamation. This is where a party has a legal, moral, or social duty to communicate information. An example is a party providing an employment reference for another. In order to rely on this defence, however, any statement made must have been made without malice.
Once a party is notified of a complaint, they have 28 days to offer to make amends to the aggrieved. An appropriate offer may be to publish a correction or apology and to pay the costs of the aggrieved. The purpose of a reasonable offer is to bring about a resolution to the matter. If proceedings are still brought, the defendant can rely on their offer as a complete defence.
It is a defence if the statement was trivial in nature and it is unlikely the aggrieved would suffer any harm.
Generally, the aggrieved can only bring one action in one state, and not multiple actions.
If you have been defamed, the most common remedy to seek is an award of damages. Damages are generally awarded to compensate the aggrieved for damage to their reputation. The legislation imposes limits, however, on the amount of damages the Court can award.
A defendant can rely on various factors to mitigate and reduce an amount awarded in damages.
These factors can include:
The publisher could also argue that the aggrieved did not have a high reputation, to begin with.
Further, even after 28 days from notification, the publisher can still look to:
The Court can also award aggravated damages. This may be as the publisher has continued to damage the aggrieved’s reputation.
If the publisher is doing further damage, the aggrieved may look to apply for an injunction. An injunction can prevent further publication of the defamatory material before a trial.
Your reputation is important and, as such, an injunction is usually brought on an urgent basis. Our civil litigation lawyers are highly experienced in these types of applications. We can bring an application for:
If you believe you have been defamed, the first step is to issue a concerns notice to the publisher. This starts the time running for them to make an offer to make amends. A concerns notice is a necessary step before commencing proceedings.
Aitken Whyte Lawyers have significant experience in stopping defamation. Contact us if you need to:
If you have been issued a concerns notice, Aitken Whyte Lawyers can assist you to respond. An appropriate response can:
If you are being sued, our civil litigation lawyers can assist you to settle or defend the claim.
Aitken Whyte Lawyers Brisbane are focused on results. Contact us for legal assistance with all commercial and civil litigation matters. Your defamation and dispute resolution experts.
Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000