Defamation cases are increasingly in the spotlight with multiple high-profile Australians. Do you know what defamation looks like?
Geoffrey Rush, Rebel Wilson and many more high-profile cases of defamation have pierced the news cycle in recent times. However, this is not simply a coincidence as Australia’s defamation law, as well as the nature and volume of information published online, has transformed the country into the defamation capital.
Everyday people can commit, and be victims of, defamation, about half of which take digital form on online platforms that we all access. As a result, knowing what is and is not defamatory is more important than ever.
What is defamation?
Defamation exists to provide a balance between the need to protect a person’s personal or professional reputation and the need to protect the right to free speech. It is a shield against false or damaging statements where a person or business seeks compensation for loss of reputation due to the publishing or distribution of defamatory material.
What is considered defamation?
In South Australia, defamation law is established in common law and the Defamation Act 2005 (SA), and there is a wide range of communications that may qualify. In fact, defamatory material can take the form of:
· posts on social media;
· blogs;
· novels;
· newspaper or online articles;
· pamphlets;
· poems;
· photos (real or fabricated);
· music;
· e-mails;
· drawings and cartoons;
· paintings;
· reviews, and more.
It is also possible to be liable for information that is broadcast or spoken – this includes radio interviews or television segments.
Simply, stating or spreading anything defamatory in a public forum (such as the internet) can result in litigation.
How do you prove defamation?
Claims are usually launched for one of three reasons:
1. To restore your reputation.
2. To seek compensation in monetary damages.
3. To end a defamatory discussion.
To show that the information that was published is defamatory, it must satisfy 3 elements:
1. It conveyed an imputation (a claim that someone has done something undesirable) that was serious enough to make a reasonable person think less of the allegedly defamed person;
2. The publication directly or indirectly identifies the person who claims to be defamed; and
3. The alleged publisher is proved to have published the material to one or more people other than the allegedly defamed person.
How defamation can cost you?
Monetary damages from defamation are calculated to include all damages that the plaintiff directly suffered from the defamatory material. This can include loss of wages, professional opportunities or earning capacity. These can include not only the actual amounts that are lost but also the likely or expected loss.
How to avoid defaming someone:
There are several ways to defend yourself against a claim of defamation including, but not limited to, showing:
· That the content of the publication was of public concern.
· That you were obliged to publish for moral, social or legal reasons.
· That the content of the publication was substantially true.
· That you did not know or ought not to have known that the material was defamatory when you published it.
· That there is unlikely to be any harm to the plaintiff’s reputation.
· That the publication was not a statement of fact but of an honest opinion.
As a rule of thumb, anything you say, publish, post or spread that is critical of another person should be done carefully and based on truths!
Conclusion
Defamation law in Australia is not without its critics. It is a widely held belief that there will need to be substantial changes to this area in the future, as defamation cases become increasingly common and continue to engulf courtrooms around Australia. For the time being, a careful approach is essential when publishing in a public space – digital or physical.
Want to know more?
If you believe that you are the victim of defamatory remarks or you are accused of publishing such material, CPC Lawyers Disputes & Civil Litigation team offers experience and knowledge to navigate the challenges of Australian defamation law.
Contact us:
Call: (08) 7325 0219
E-mail: info@cpclawyers.com.au