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Remedies

Contributed by ShelleyEder and current to 1 May 2016

In a successful court action for defamation there are three possible common law remedies available:
  • damages
  • exemplary damages
  • injunctions

Damages

Defamation is compensable per se, meaning once the plaintiff has established that a defamation has occurred, they do not have to prove they have suffered damage as a result - the court will assume this. A successful plaintiff may also be able to claim an amount for economic loss (including loss of earnings or business profit), if such a loss can be demonstrated.

There are no clear guidelines for calculating damages. It is possible for a person to successfully prove a defamation has occurred, but still not receive a substantial amount of damages. Things that the court will consider in an award of damages will include the nature of the publication, its scope, the circumstances of the publication as well as the conduct of both the plaintiff and defendant in the proceedings.

The defendant may seek to mitigate (reduce) damages by demonstrating that the plaintiff has a bad reputation. The evidence of bad reputation must relate to the part of the plaintiff's reputation that has been harmed by the defamation. For example, if the defamatory material insinuates that the plaintiff is promiscuous, the defendant can't use evidence of dishonesty to demonstrate a bad reputation.

It should be noted that damages for non-economic loss are limited by the Defamation Act. The most recent maximum amount of damages can be found in the Government Gazette: http://www.nt.gov.au/ntg/gazette.shtml.

Aggravated damages

A court may award aggravated damages if the court is satisfied that the circumstances are such that aggravated damages are justified [Defamation Act s32(2)].

Generally, the state of mind or malice of the defendant at the time they created the defamatory matter is not relevant to awarding damages [Defamation Act s33]. However, aggravated damages can be awarded when the damage to the plaintiff is made worse by the unjustifiable, improper or insincere conduct of the defendant: McCarey v Associated Newspapers Ltd (No2) [1965] 2 QB 86.

The two factors that most commonly demonstrate a defendant's aggravation toward the plaintiff are:
  • the defendant's failure or refusal to retract or apologise
  • the defendant's improper use of the defence of justification; that is, the defendant insists the material is true but cannot establish grounds on which that belief is based.
If the plaintiff suffers additional harm because of such conduct, aggravated damages may be awarded.

Exemplary/punitive damages

Exemplary damages are an additional common law award of damages designed to punish the defendant's conduct, not to compensate the defamed person. They are not allowed to be awarded in the NT [Defamation Act s34].

Injunctions

An injunction is an enforceable court order preventing a specific act of defamation, such as stopping the publication of a particular article in a newspaper or the televising of a particular story. When deciding whether to grant an injunction the court must perform a balancing act, between right to freedom of speech and the protection of an individual's reputation from unwarranted attack.

Injunctions prohibiting the publication of allegedly defamatory speech are not readily granted. Courts are often reluctant to restrain discussion of matters of public interest or concern. The mere refusal of an injunction does not restrict the plaintiff's right to claim compensation for any defamation that occurs.

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