What can you do if you have been defamed?

Resolution without Defamation Proceedings

If you feel you have been defamed, the first step is to take swift action by engaging a defamation law firm to try and remove the material from further or ongoing publication and to see if a negotiated resolution can be achieved.

Subject to the severity of the defamatory statements and the extent of its publication or distribution, it may be that a compromise can be reached involving terms such as the making of a public apology, an undertaking to cease making further comments and/or some form of financial compensation. An experienced defamation lawyer will aim for swift and early resolution that minimises the extent of the harm caused by the defamatory material and achieve quick vindication, particularly given that it may result in outcomes that a Court is not able to grant or order (e.g. the publication of an apology). Typically as part of any resolution, a good defamation law firm or legal practice will seek for full reimbursement of the legal costs associated with the defamation matter to date in conjunction with compensation for the suffered defamation.

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Offer of amends and apology

If a publisher makes a reasonable offer of amends to a claimant, and the claimant refuses the offer, the publisher may be able to defend the defamation claims based on that. In some cases, the offer may be a complete defence to a claim. The offer may include an offer to publish an apology. By engaging an experienced defamation lawyer you will be well advised on your defamation matter and protecting you against unecessarily losing your defamation claim.

Defamation Case Proceedings in Court

If an agreement cannot be reached with a publisher, you may consider commencing a defamation claim in Court proceedings, the outcome of which may ultimately be determined by a Judge or a jury. Seeking expert legal advice and having an experienced defamation lawyer on your team is incredibly important in ensuring the successful outcome of the defamation claim and removing the defamatory comments.

Any compensation (an award of damages) for defamation claims are not fixed and depend on the circumstances of the case. If you are successful in the defamation proceedings, you will ordinarily receive compensatory damages which will vary according to factors including but not limited to:

1. the nature of the imputations – i.e. how serious and damaging the defamatory comments are;

2. the number of imputations that arise from the publication;

3. the extent of the publication (e.g. limited or worldwide publication);

4. the effect of the defamation on your reputation – e.g. whether it impacted your professional standing and earning capacity;

5. what if anything the publisher did after being informed of the defamatory nature of the publication;

6. if the harm and damage was aggravated by other conduct or actions attributable to the publisher.

Given the significant defamation law firm cost as well as other legal costs for commencing a defamation case in Court and the possible media coverage and possible public interest in certain defamation proceedings, careful consideration needs to be given to the merits and benefits of commencing proceedings.

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Who can sue for defamation?

An individual can make a defamation claim by engaging defamation law firm. A deceased person cannot sue. A corporation with ten or more employees can't sue unless it is an excluded corporation. Excluded corporations are:

• Non-profit organizations - companies that don't make money to give to their members.

• Small businesses that have less than 10 employees and are not related to other businesses are allowed to file their taxes together.

A corporation cannot receive damages for emotional harm, but must be financially harmed in order to receive compensation.

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Who is liable?

If someone published or authorized the publication of the defamatory statement or material, they may be held liable and be subject to a defamation claim and court proceedings. This includes the author, distributor, editor, printer or proprietor of a newspaper, press agency, internet service provider or online bulletin board. If the material is left on the internet or bulletin board after being warned to remove it, the publishers are especially liable.

Important Defamation Definitions

• Plaintiff's Identity

  • Frequently, material is published without expressly referring to or identifying the Plaintiff. The defamatory statement must reference or concern the Plaintiff for it to be defamatory.

• Publication

  • Publishing defamatory material means making it available to the public. The act of publishing something usually refers to putting it out there for people to see, but in legal terms, it can also mean sharing something with just one other person. When it comes to defamation law, "published" simply means communicated.

• Defamatory matter

  • The Plaintiff must show that the messages, insults, or innuendos in the defamatory statements were about them. The Court looks at the content of the publication and decides what the normal meaning of it was.

  • The following tests are used by the court:

    • It is likely to harm the Plaintiff's reputation by casting him or her in a bad light.

    • It contains a statement about the plaintiff that might cause him or her to be shunned or avoided.

    • It has the potential to diminish others' perceptions of the Plaintiff.

• Place of publication

  • Defamatory remarks are frequently published in a variety of states and/or dependent territories of the Commonwealth, especially when material is published on the internet. The High Court has determined that general rule with respect to internet publications is that defamation occurs where the material is made available in its entire form.

• Commencement of defamation cases

  • The Plaintiff can instruct their defamation lawyer to file a case in any legal jurisdiction, with certain exceptions. The action would generally be started where the plaintiff lives, although some defamation cases may be filed in another location. If the content is published in multiple states and territories, the Plaintiff should start his or her action where the defamation occurred.