Defamation is probably the last thing on your mind when you post a quick comment on Facebook or Twitter or post an online review – but be mindful ill-considered posts may well constitute defamatory publications. Re-tweeting a defamatory tweet or sharing a defamatory Facebook post may also constitute publication of the defamatory material so care must also be taken with what you re-tweet or share.
Defamation is the civil wrong or tort of injuring the good reputation of a person or corporation* by publication (communication) of a false and derogatory statement without legal justification (defence).
Defamation is generally governed by the Defamation Act 2005 (Vic) and uniform legislation applies in all states and territories, although the common law may still apply.
For a defamation action to succeed and the communicator be held liable, the person complaining of the defamation must prove:
- the communication or publication
- to a third party
- of a defamatory matter
- of and concerning, or identifying, the complainant
- without lawful justification (defence).
Publication is not just limited to publication in a newspaper and can be made in any way including in writing, orally, gestures, images or electronic dissemination (i.e. email, tweet, Facebook post, Instagram post, blog, vlog, post on an online forum).
Communication or publication must be made to a third party, being at least one person other than the person who claims to have been defamed.
A publication will be defamatory where it either directly or by implication conveys a meaning that in the minds of ordinary reasonable people would injure that person’s reputation.
The defamatory matter must identify the person. This could be by name or though sufficient information that a reasonable person would be able to identify the person the subject of the publications.
There are a number of lawful justifications (defences) that may apply including:
- justification (substantially true)
- contextual truth (where implications are also made that are substantially true)
- absolute privilege (made during parliamentary or judicial proceedings)
- public documents (published by parliament, government, courts or tribunals)
- fair reporting of proceedings of public concern
- qualified privilege (where there is a legal, social or moral obligation to communicate to a third party)
- honest opinion (based on proper material and on a matter of public interest)
- innocent dissemination (applies to people who distribute publications but have no control over the publications’ content)
- triviality (harm is unlikely to be sustained).
Proceedings must be instituted within one year from the date of publication (although extensions may be granted to a maximum of three years).
Non-economic damages (eg for pain and suffering) are capped at $250,000 (indexed with inflation). Pure economic loss requires a sufficient relationship between the publication and the loss claimed.
Criminal proceedings may be commenced against a publisher if the publisher knew that the defamatory publication was false at the time of the publication or had no regard as to its truth at that time.
* Only Corporations with less than 10 employees or certain non-profit corporations can sue for Defamation.
For more information please contact our friendly and professional team at Peter Speakman & Co on 9822 8611.
