Defamation occurs when someone communicates material about a person to a third person which causes serious harm to the reputation of the person, and there is no legal defence for doing so.
The communication, often referred to as the “publication”, can be written or verbal or even implied (for instance, through an illustration) but whether it is defamatory depends on factors such as its context and to whom it is communicated.
To prove defamation, it is necessary to establish that the material published contained one or more defamatory “imputations”. This involves an assessment of the natural and ordinary meaning of the words or images about a person or their behaviour which were communicated.
Defamation can occur in publications including but not limited to articles published by news organisations, comments published on social media or in emails disseminated between individuals, on television, in cartoons and images howsoever circulated, in books and in verbal broadcasts and conversations.
Defamation does not occur simply because a publication contains vulgar or offensive language or because it constitutes hate speech. Rather, it is concerned with publications which cause serious harm to a person’s reputation.
What are the defences to Defamation?
There are a number of defences to defamation and the most common defences arise where the publisher (the person communicating the words or images):
can prove that what was published was substantially true;
was offering an honest opinion, rather than making a statement of fact
was fairly reporting on a matter of public concern;
was disclosing information to recipients who had a legitimate interest in receiving the information; or
was innocently distributing defamatory material (e.g. where they are an employee of a bookstore).
What can you do if you’ve been defamed?
Resolution without Court Proceedings
If you feel you have been defamed, the first step is to take swift action 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 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. A swift and early resolution can assist in minimising the extent of the harm caused by the defamation 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).
Court Proceedings for Defamation
If an agreement cannot be reached with a publisher, you may consider commencing Court proceedings, the outcome of which may ultimately be determined by a Judge or a jury.
Any compensation (an award of damages) for defamation are not fixed and depend on the circumstances of the case. If you are successful in the proceedings, you will ordinarily receive compensatory damages which will vary according to factors including but not limited to:
the nature of the imputations – i.e. how serious and damaging they are;
the number of imputations that arise from the publication;
the extent of the publication (e.g. limited or worldwide publication);
the effect of the defamation on your reputation – e.g. whether it impacted your professional standing and earning capacity;
what if anything the publisher did after being informed of the defamatory nature of the publication;
if the harm and damage was aggravated by other conduct or actions attributable to the publisher.
Given the significant costs involved in any Court proceedings 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.
BlackBay Lawyers can help you
Because defamation is a complex matter and can have far reaching consequences on an individual’s or a business’ reputation, it is necessary to seek expert guidance designed to balance your or your business interests and needs in approaching the problem as well as stopping and where possible, reversing the reputational crisis and consequences caused by the defamation.
BlackBay Lawyers specialises in defamation law and its Partner and Founder has represented those injured by publications as well as publishers in defamation disputes. If you believe you have been defamed or want to defend a claim, please feel welcome to contact Victoria-Jane Otavski, Partner and Founder, for a confidential discussion about your concerns.
