Defamation

Individuals, not-for-profit organisations and companies employing fewer than ten people may pursue a remedy, including compensation, if they have suffered loss of reputation by a defamatory publication. Defamation matters are governed by the Defamation Act 2005 (Qld) with similar legislation in place across other Australian jurisdictions.

Action may be available to a person in relation to the publication of defamatory matter about that person. The defamatory matter may comprise:

  • a printed article, report, advertisement in a magazine or newspaper;
  • a media communication over the television, radio, internet or other forms of electronic communication;
  • a letter, note or other writing;
  • a picture, gesture, announcement, discussion.

Liability for defamation may be attributed to any natural person or legal entity including government bodies and companies.

Proving defamation

The following elements must be evident:

Publication – the information must have been communicated to a third party.

Identification – the information must identify the aggrieved party. The person need not be named provided there is sufficient other information that would reasonably identify the person to a third party.

Defamatory matter – the information must contain a defamatory matter such as material or a misrepresentation that damages, or is reasonably capable of damaging, a person’s reputation. The publisher’s intention is irrelevant.

No defence – there must be no defence available to the publisher. A range of defences are available, the most typical being justification (that the imputations are substantially true) or, that in addition to the defamatory material, the matter contained one or more imputations that were substantially true and the aggrieved person’s reputation was not further harmed as a result.

Other defences include privilege (the material was published during the course of legal, tribunal or parliamentary proceedings), that the matter was contained in or extracted from a public document, honest opinion and triviality.

Resolving a defamation dispute

An aggrieved person may issue a ‘concerns notice’ to a publisher regarding an alleged defamatory publication. The concerns notice should particularise the imputations of concern. If the purported defamatory material and concerns are not adequately particularised the publisher may request further particulars and the aggrieved person must provide these within 14 days.

Upon receipt of a concerns notice, the publisher may make a written offer to make amends within 28 days. The offer must:

  • be readily identifiable as an offer under the legislation;
  • include any limitations with respect to the offer and the defamatory imputations in question;
  • include an offer to publish a reasonable correction of the matter in question and, where material has been provided to a third party, an offer to take reasonable steps to inform the other party that the matter is or may be defamatory;
  • include an offer to pay the reasonable expenses of the aggrieved person incurred before the offer was made, and in considering the offer.

The offer may include other additional remedial action to redress the harm sustained by the aggrieved person including the payment of compensation.

If an offer is made and accepted the parties may enter terms of settlement and the aggrieved person may not proceed further against the publisher with respect to the matter. If an offer is validly made and not accepted, then the publisher may use the aggrieved party’s refusal to accept the offer as a defence in legal proceedings.

Going to Court

An aggrieved person has 12 months from the date that a defamatory statement is made to pursue damages in court proceedings.

If successful, a judge will determine the appropriate damages payable which are capped to a statutory limit. Additional damages may only be awarded if the Court is satisfied that the circumstances of the matter warrant such an award.

Defamation disputes can be complex and should be addressed promptly to minimise loss and mitigate liability.

Key Contacts

Doug McKinstry
Director
John Hayward
Director