If you hear that someone has said something about your character or some other personal trait, often a knee-jerk reaction is to think “they’ve defamed me and they can’t do that.” However this is not always the case. You first need to understand the legalities of defamation, and how this may apply to your situation.
So what is defamation? Defamation is defined as the communication of a false statement that harms the reputation of an individual, business, product, group, government, religion or nation. The statement needs to have been made to someone other than the person defamed.
Traditionally there were 2 types of defamation: slander (verbal defamation) and libel (written defamation) – the distinction was abolished by the Defamation Act 2005 (NSW) (section 7).
The entire purpose of the tort of defamation is to balance the right to free speech against a person’s right to enjoy a reputation free from unlawful (unjustified) attack.
To succeed with a defamation claim, you must prove:
* publication of the communication to a third person (whether verbally or in writing) – if you are the only one to read the publication, then the tort is not established: Pullman v Hill (1891 UK decision);
* the communication identifies you;
* the communication is defamatory – does the communication lower/harm your personal or professional reputation, hold you up to ridicule or lead others to shun and avoid you? This is judged from the viewpoint of an “ordinary and reasonable person in the community”, and may include imputations or innuendos which insinuate a false or true suggestion
* there is no lawful excuse for making the statement, such as fair comment (section 29), truth/justification (section 25), absolute privilege (section 27), qualified privilege (section 30)
If you have been defamed, then you are entitled to compensation by way of damages (to a present maximum of $324,000). There is no need to prove that you have suffered any damage (that is, it’s a per se offence).
Interestingly, a corporation has no right to sue for defamation in relation to the publication of defamatory matter about the corporation (unless it was an “excluded corporation”, meaning a not-for-profit or one with less than 10 employees) (section 9).
Anyone who published or authorised the publication is liable – this may include the original author, as well as the publisher, internet service provider and so on.
Whether or not a communication is defamatory is a matter to be decided by a jury, although the amount of damages to be awarded is decided by the judge.