Defamation law in Australia: A quick guide

What is defamation, and what is an example of defamation?

Defamation is the publication of material which harms a person’s reputation. Under defamation law, this can include written material, pictures, or spoken statements.

To succeed in an action in defamation, the plaintiff needs to prove that the material published by the defendant contained one or more defamatory “imputations”. Imputation is a negative claim about a person or their behaviour – for example if Jane Smith writes a social media post saying that “Joe Bloggs is a lousy plumber and a crook”, then Joe Bloggs might allege that the post contained imputations that he is incompetent and dishonest if those allegations are untrue.

Can social media posts be defamatory?

Defamatory material can potentially be any kind of communication that has been published in some way. This includes social media posts, comments, replies.

Are there any defences to defamation?

There are a number of defences to defamation. The most common defences cover situations where depending on the facts of the case:

•   the defendant can prove that what they published was substantially true;
•   the defendant was offering their honest opinion, rather than making a statement of fact; or
•   the defendant was innocently distributing defamatory material, for example where they are the employee of a newsagent or library.

What is the time limit for bringing proceedings in defamation?

In every State and Territory, the limitation period for an action in defamation claims is one year following the publication of the defamatory material. If a person fails to start court proceedings within this period, they will not be able to bring an action in defamation.

The limitation period can potentially be extended by a court up to three years after publication. However, to get an extension, the plaintiff has to prove that it would have been unreasonable of them to sue during the first year after publication. This will only be possible in rare cases and leave is not often granted by Courts if the 12-month limitation date is missed. If you think that a limitations date may shortly apply to your potential claim, or you may have missed a limitations date, you should seek urgent individual legal advice.

Is defamation illegal?

Defamation and anti-defamation laws are civil, not criminal, matter. Disputes involving defamation are resolved by individuals through the court system without the involvement of the police. A person who is successfully sued for defamation doesn’t go to prison or have anything listed on their criminal record. Instead, they typically have to pay the plaintiff damages, plus in many cases, some of the costs of the court proceedings.

If I successfully sue someone for defamation, what compensation am I entitled to?

Defamation damages are not fixed and depend on the circumstances of the case. In Australia damages can range between small sums and millions of dollars. Where the publication of defamatory material has caused significant harm to a plaintiff, such as financial loss or personal hardship, a larger award is more likely.

No matter what the likely damages are, court proceedings usually involve significant costs, so any action in defamation should be taken very seriously and advice should be sought before contemplating issuing proceedings.

What is the difference between defamation, libel and slander?

Defamation was once divided into two categories: libel and slander. This distinction became less important over time, and in most Australian jurisdictions was no longer practically important by 2005, when uniform defamation legislation was introduced throughout Australia (see, for example, the Defamation Act 2005 (Vic)).

The distinction between libel and slander was completely abolished under the uniform legislation, meaning that plaintiffs can now sue for defamation regarding publications of defamatory matter of both kinds under the Defamation Act.

Can a company sue for defamation?

Small businesses and not-for-profit companies can sometimes sue for defamation, but larger companies usually can’t.

Under the uniform defamation legislation which applies in every State and Territory, a corporation can’t sue for defamation unless it is an “excluded corporation”. An excluded corporation includes a not for profit or a company which employs fewer than 10 people.

Even if a company can’t sue in defamation, it may still be able to sue for an injurious falsehood. An injurious falsehood is a false statement about a business, published to a third party (for example, an online review or social media platform which is read by members of the public), which is made maliciously, and causes actual damage to the business. However, it is often harder to prove an injurious falsehood than defamation, for two main reasons. First, the plaintiff has to prove that the defendant made the statement maliciously, i.e. with the intention to do harm to the plaintiff. Second, the plaintiff has to prove that the statement caused actual damage, such as a loss in sales or an increase in customers seeking refunds. These thresholds can be difficult to meet, depending on the facts of the case.  If you represent a company whose reputation has been damaged by the publications of a third party, you should get independent legal advice to determine whether you can take legal action of this nature.

If I am being sued for defamation, or want to sue someone for defamation, what should I do?

Defamation is a complex legal matter. At Gordon Legal law firm, we have a number of lawyers experienced in representing both plaintiffs and defendants in defamation disputes. This information is provided in a general manner and does not take into account any individual facts or circumstances. If you think you have a claim in defamation or want to defend a claim, you should obtain independent legal advice relevant to your facts and circumstances.