Useful Resources

Defamation

Has somebody said something which has upset you, ruined your reputation or business? They may have defamed you.

The law of defamation protects individual reputation. The law assumes that all people are of good character until the opposite is proved.

Did you know that I have successfully handled defamation involving the loss of $40,000,000 of contracts?

I can help you today.

What is defamation?

Defamation occurs when defamatory material relating to an individual is published. Material will be defamatory if it could:

Injure your reputation of by exposing you to hatred, contempt or ridicule; cause people to shun or avoid the you or lower you in the estimation by right thinking members of society.

For a defamation action to be successful, three elements must be satisfied:

1. The information was communicated by someone to a third person other than the you (publication);

2. The material identifies the you (identification); and

3. The information/material contains matter that is defamatory, regardless of whether the material was intentionally published or not (defamatory matter).

Provided that no defences are applicable, if these elements can be satisfied then someone will be liable to pay damages to you to compensate him you for the damage caused to your reputation.

There is now no distinction between defamation communicated in writing and defamation communicated verbally. Both are actionable.

Defamatory statements

A defamatory statement can and often arise through the implied meaning of words used in the statement (Because people defaming other people try to be smart and think they can avoid liability). If you believe you have been defamed, some matters to consider include:

You have to be able to show that the statement or words used referred directly to the you.

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.

You don’t have to 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 defame the aggrieved.

Defences to defamation actions and offers of amends

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

1. Justification - it is a complete defence to show that the statement or words used are substantially true;

2. Statement was an honest opinion;

3. The defence of contextual truth – the statement contains additional attributions that are proved to be true;

4. Triviality, it is unlikely that the aggrieved would suffer any harm;

5. Privilege, (a cool concept) – which can be absolute, or qualified; and

6. Offers 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;

7. Internet 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 you might like to seek is an award of damages.

What are the damages?

The law recognises three major categories of damages:

1. Compensatory Damages, which are intended to put you back into the position you were in, before a defendant's wrongful conduct;

2. nominal damages, which consist of a small sum awarded to a plaintiff who has suffered no substantial loss or injury but has nevertheless experienced a violation of rights; and

3. punitive damages, which are awarded not to compensate a plaintiff for injury suffered but to penalise a defendant for particularly wrongful conduct.

In specific situations, other forms of damages may be awarded: liquidated damages.

Legislation imposes limits on the amount of damages that can be awarded.

Various factors can be used to mitigate and attempt reduce the amount of damages you may be awarded.

If the publisher of the statement has done more damage to you between the publication of the statement and trial, what is known as aggravated damages may also be awarded.

You can also apply for an injunction to prevent further publication of the defamatory material.

If you believe you have been defamed or someone is threatening to sue you, or has sued you, I can and will assist you with a defamation claim, if you have one. Call me now.