What is defamation?

Contributed by Susan Platis, Legal Aid ACT and Ben Aulich (https://aulich.com.au/) and current to June 2018.

What is defamation?

Defamation occurs when ‘matter’ identifying a party and harming that party’s reputation is published (see below for What is matter, Identification, When is matter published and What it means to harm someone’s reputation).

Defamation in the ACT is covered by Chapter 9 of the Civil Law (Wrongs) Act 2002 (Civil Law (Wrongs) Act).

Unlike most claims for damages, defamation does not require a party to prove they have suffered damage or loss in order to be successful. The amount of damages will be based on a number of factors and determined by the court (see Remedies).

Defamation actions can be time consuming, expensive and stressful. Litigation should be considered only after legal advice. The cost of litigation can exceed the damages awarded, even if the plaintiff (the party bringing the action) succeeds. Unsuccessful litigants can be liable for some or all the other party’s costs. The success or failure of most defamation cases relies on whether the defendant (party opposing the action) had a legal excuse or ‘defence’ for publishing defamatory matter (see Defences).

Damages is the most common remedy (see Remedies) but in some cases offers to ‘make amends’ can avoid the need to go to court (see Early Resolution). Early retractions and apologies by the defendant can reduce the amount of damages awarded.

When defamation will occur

Defamation occurs when 'matter' identifying a party and harming that party's reputation is published (see below for What is matter, Identification, When matter is published and What it means to harm someone's reputation).

What is 'matter'?

Section 116 of the Civil Law (Wrongs) Act defines matter very broadly to include:

a) an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical;
b) a program, report, advertisement or other thing communicated by television, radio, the internet or any other form of electronic communication;
c) a letter, note or other writing;
d) a picture, gesture or oral utterance; and/or
e) any other thing by means of which something may be communicated to a person.

When is matter ‘published’?

Matter is published if a defamatory ‘meaning’ or ‘imputation’ is communicated to just one other party (other than the plaintiff and the defendant). The extent of publication is relevant to the amount of damages awarded.

Repeated publications

It is not a defence to defamation to say you are merely repeating or republishing someone else’s publication. Every republication of the same, or substantially the same, defamatory matter in substantially the same form to one or more persons is a new publication of defamatory matter, and each ‘publisher’ is answerable as if the defamation originated with them (Civil Law (Wrongs) Act, s123 (5)). A plaintiff will often sue both the author of the defamatory publication as well as other parties who republish the matter: Gorton v Australian Broadcasting Commission (1973) 1 ACTR 6.

The original ‘publisher’ of defamatory matter can also be liable for subsequent republications by other parties. For example in the case of Sims v Wran [1984] 1 NSWLR 317, a politician was held liable for repetitions in the media, of defamatory statements he made during a press conference.

Identification

Published matter must identify the plaintiff in order for it to be defamatory. Deliberately naming or showing a photo identifying a person will amount to publication under defamation law, but ‘identification’ can also occur inadvertently or accidently. In Lee v Wilson ([1934] HCA 60; [1934] HCA 60; (1934) 51 CLR 276) a newspaper article in Victoria referred to a corrupt Detective Lee. At the time there were three police officers with the name 'Lee' in Victoria. The court held that the article had potentially identified and defamed all of them.

If a group is defamed (eg all lawyers are thieves), usually no individual member can sue unless that group is very small and identifiable (eg current ministers of the Queensland Parliament) (Bjelke-Peterson v Warburton [1987] 2 Qd R 465).

Unique facts, like a person’s job title (eg manager of a specific company), address, family relationships or other characteristics may also identify a party for the purposes of a defamation claim. Showing footage of a party’s house or place of business as background to a story may give rise to the imputation that the story is about them (Henry v TVW Enterprises Ltd (1990) 3 WAR 474).

Who can bring a defamation action?

Any individual can sue for defamation, as can not-for-profit organisations (Civil Law (Wrongs) Act, s121). Generally speaking corporations cannot sue for defamation unless they have fewer than 10 employees (Civil Law (Wrongs) Act, s121), however directors or managers of corporations can sue for harm to their own reputation.

An action cannot be sustained after a plaintiff has died (Civil Law (Wrongs) Act, s122).

Who can be sued for defamation?

Anyone who is involved in the publication or distribution of defamatory matter may be liable, including corporations, employees and members of the public republishing defamatory matter. An action cannot be maintained against a person who has died (Civil Law (Wrongs) Act, s122). Defences may apply (see Defences).

Where are defamation claims heard?

Although defamation claims can be heard at any level, including in small claims jurisdictions, and in the Federal Court, most defamation claims in the ACT are heard in the ACT Supreme Court or ACT Magistrates Court. Uniform defamation law applies in Australia, and proceedings concerning matter published Australia-wide can be heard in numerous jurisdictions (State or Territories). Factors which may affect where the claim is heard include where defamed person resides, where the matter has been published and how much harm to the person’s reputation has occurred in locations where matter has been published.

Time limit for commencing a defamation action

The limitation period for commencing a defamation action is generally 12 months from the date of publication (Limitation Act 1985 (ACT), s21B (1)). In rare circumstances the court may extend this to 3 years from the date of publication (Limitation Act 1985 (ACT), s21B (2)).