Defamation is often something people have heard of, but don’t understand. It is more than just a means of putting an end to office gossip. Defamation is an area of law looking to protect your reputation in the eyes of the larger community.
WHAT IS DEFAMATION?
Defamation is a dual headed beast. It provides protection under the common law tort of defamation and through the statutory presence of the Defamation Act 2005.
Someone is said to have “defamed” a person if they say or publish information that makes people:
- Shun, avoid or hate you;
- Ridicule, show contempt or think less of you; and
- Reduce your reputation in business, trade or profession.
This includes within the business or work community, and broader society.
HOW DO YOU DEFAME SOMEONE?
A defamatory statement can verbal or in a written statement. The important step is that the information must be made available or published to someone other than the person defamed. In a past newsletter article we wrote (read here) that it can be as simple as telling people what you think of another person on your Facebook account. All types of online communication, public writings and even talking to other people can result in defamatory statements being made.
WHO CAN BE DEFAMED?
Only a living person can be defamed. So say all you like about Elvis!
Under the new legislation in Western Australia, large companies are no longer able to sue for defamation.
The only people that can bring an action for defamation are:
- A private individual;
- Not- for-profit companies; and
- Companies with less than ten employees
WHO IS LIABLE IN DEFAMATION?
It is not just the person who says the untruthful comment that can get in trouble. Any person who participates in the publication of the statement can be liable. For Example, if someone said something untruthful on television, it is not just that person who can be sued. The broadcaster, the journalist and the producer could all be said to have contributed to the publication and therefore be liable. Similarly, in social media, if you like or share an untruthful comment or unsightly image then you and the person who published the content may be liable.
WHAT CAN YOU DO IF YOU ARE BEING SUED FOR DEFAMATION
Just because you have defamed someone does not mean that you will be held accountable in court. There are remedies and defences available to you.
- APOLOGISE – Usually the person who will sue you in defamation will first ask for an apology. This may be done formally through a “concerns notice” or informally in person or in writing. If you choose to apologise it should be done in specific wording and on the condition that no further legal action will be taken. It is best to see a lawyer for advice in formalising you’re apology.
- GO TO COURT – Defamation cases are heard in the Supreme Court of Western Australia. A successful action in defamation may result in the court rewarding damages to compensate for injury to reputation and any financial losses caused by the statement or publishment. The unsuccessful party may also be ordered to pay the successful parties legal fees.
ARE THERE ANY DEFENCES TO DEFAMATION
Under the Western Australian statute there are a number of defences available for actions in defamation. To decide which best suits your case you should consider contacting a lawyer. Some of the defences available under the Act include:
- Justification that the statement is substantially true.
- Contextual Truth where there are one or more statements in the published piece that are true, and that the remainder of the publication does not impact on the person’s reputation.
- Honest Opinion, looking to the specific circumstances, the publisher can show that the information was just an opinion and never an expression of facts and that such opinion was based on accurate sources.
- Privilege where the statement was published in privacy or in special circumstances, such as parliamentary proceedings.
- Where the information is already in the public domain, although the publication may clarify or make that information easier to read, if it is already public then it cannot be defamatory.
- Fair reporting of public concern where the person who published the document can show that the information provided was of interest and concern to the public.
- Innocent dissemination by an employee or subordinate distributer where there was no negligence on the part of the defendant.
- Parody will have the last laugh, any comical writing or comments are considered not to be defamatory.
WHAT IF THEY WERE DEFAMED?
If the court finds the claim of defamation is successful, the person who published and distributed the document may be liable to pay damages. Whether you knew you were saying something defamatory is not relevant to the proceedings. The court will instead look to a range of other factors:
- Was an apology made?
- Was there a further publication correcting the defamatory statements?
- Has the defamed person already recovered damages or agreed to compensation?
Damages will be assessed based on the reasonable relationship between the harm suffered by the person who the material is about, and the money awarded.
Aside from monetary penalties, under the Criminal Code defamation is an offence punishable by three years imprisonment for a person who has published defamatory material without an excuse.
THINK YOU HAVE A CASE?
Well then you had better act quickly! To sue for defamation you must commence court proceedings within 1 year of the material being published.
About the authors:
This article has been co-authored by Haley Graydon and Steven Brown at Lynn & Brown Lawyers. Haley is a law clerk and is in her final year of study at UWA. Haley has a keen interest in is family law and estates. Steven is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in commercial law, dispute resolution and estate planning.
