23 October 2017

What is Defamation?

Mark Jones
Mark Jones Litigation Lawyer

Anyone who suffers loss or harm as a consequence of a civil wrong, other than for breach of contract, is said to have a potential right of action under the law of tort.  Defamation is a tort.  Other examples of claims in tort include actions for negligence or nuisance or civil assault.

Defamation is the right of action in respect of damage to reputation.  It is a collective term encompassing claims for damages in respect of written words or images, once referred to as libel and claims based on spoken words or gestures formerly referred to as slander.

In extenuating circumstances it can constitute a criminal offence and there are specific provisions in this regard under the Queensland Criminal Code.  The law of defamation is otherwise based on the provisions of the Defamation Act 2005 and the common law, that is the law derived from judicial precedent.  With some relatively minor exceptions the laws of defamation are now uniform throughout each of the States and Territories of Australia.

The essence of a claim for damages for defamation is the publication of either written or spoken words or gestures which cause or are likely to cause harm to the reputation of another.  The law in this area has evolved as a means of compensating an individual for the hurt, embarrassment and other losses suffered in circumstances where their reputation has been damaged as a consequence of the utterance or publication of written words or images.

A cause of action does not arise unless the defamatory material is published or communicated to at least one other person.  For example before “A”  can bring a claim for damages for defamation against “B” it must be able to be proven that the defamatory words of “B” were heard or read, as the case may be, by “C”.

Through the years the courts have developed a number of tests in order to determine whether words are defamatory.  In essence however a publication is said to be defamatory if it likely to cause ordinary reasonable persons to think less of the plaintiff or shun ridicule or avoid him.  Another test applied by the courts is whether the words have the tendency to lower the person in the estimation of reasonable members of the community.

A defamatory imputation need have no actual effect upon a person’s reputation.  The law looks only to its tendency and damage is presumed.  In other words unlike with other causes of action, for an individual to sustain an action in defamation there is no need to show actual or direct financial loss.

Prior to 1 January 2006 corporations were able to sue for defamation provided that they were able to prove that they had suffered direct financial loss.  With the introduction of the Defamation Act 2005, companies formed with a view to profit and employing ten or more employees are no longer able to sue for defamation.  It should be noted however that companies still have other rights of action and the rights of company directors and officers remain unaffected.

An action in defamation does not arise unless a plaintiff can prove that he or she has been identified either directly or indirectly from the defamatory material complained of.

 

Ordinary Meaning and Innuendo

Actions in defamation are generally based on the ordinary or literal meaning of the defamatory words complained of.  For example, if in a publication it is asserted that “A” does not pay his tax, the clear defamatory imputation that arises from such statement is that “A” is guilty of tax avoidance.

Defamation can however also arise in the circumstances of an innuendo meaning.

Generally speaking, intention is irrelevant in so far as relates to the law of defamation.  It is for instance not relevant that it was not intended that the matter complained of should contain any defamatory imputation.

 

 


Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).

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