DEFAMATION LAW aims to protect the reputation of people and companies from falsehoods made by others.
Defamation Law is designed to protect you and offer some satisfaction in circumstances where your reputation has been damaged by tall tales or false allegations. You should consider your options for addressing defamation by contacting a legal professional regardless of the details of your circumstances – whether your reputation has suffered serious harm by way of someone making and/or sharing untrue statements about you (which is referred to in the legal profession as ‘Slander’); or a group of people have published false stories about you, perhaps online (which referred to as ‘Libel’); or something else entirely. In many cases, you may actually be able to take action against the person or people who are causing harm to your reputation and image, including potential for the Other Party to pay you money in the form of damages.
Although Defamation Law and matters involving Defamation often end up in the Courtroom, there is a mandatory first step which must occur before any person can bring about Court Proceedings for Defamation. This first step is the issuance of something called a Concerns Notice; and failing to adhere to is generally not an option for any person or party who wishes to bring Defamation Proceedings to Court. Accordingly, it’s important to ensure that you understand what a Concerns Notice is; and how you can protect your Defamation Proceedings from procedural interruptions or interference.
All states and territories of Australia have their own legislation regarding Defamation – in Queensland, for example, there is the Defamation Act 2005 (Qld). However, the principles used to define Defamation are universal throughout the country.
These principles provide the following elements comprising Defamation, which should be relied upon when establishing whether something is (or is not) defamatory:
Essentially, if you are able to demonstrate that an item is actually defamatory towards a specifically referenced party and has been published (or otherwise made available) to people other than the originator of the item and the specifically referenced party, then you may be able to rely upon Defamation Law in obtaining justice.
There is no specific guideline as to what is and is not considered defamatory matter; however, there is a universally accepted understanding that it does not matter if the item was not intended to be defamatory; as long as it is.
The current test applied in Australian Courts is whether a reasonable person would objectively believe the item was defamatory, by considering whether the item has:
Secondly, the defamatory matter needs to refer to the person claiming defamation (the aggrieved party). This does not mean that the statement or publication needs to specifically identify the aggrieved party (referred to as ‘express identification’), rather, it just needs to be demonstrated that the publication is about them (‘indirect identification’).
If a reasonable third party, who knows the relevant circumstances of the matter, understands the statement or publication to be making reference to the aggrieved party, then this element would be satisfied.
Publication is the third and final element of defamation as it needs to be demonstrated that the defamatory material was actually expressed or communicated to others.
A publication can mean many things such as an email, poster, website, news article, television broadcast, online material, etc. Verbally expressing defamatory statements to others also constitutes a publication.
Publications do not need to be made to many people in order to satisfy this element of Defamation – in fact, an item being shared with a single person is sufficient.
An important thing to note about publication is that every republication of the defamatory material counts as a new publication.
If the same person or someone else reposted a defamatory statement about you on social media, that repost could constitute an act of publication of defamatory material.
A CONCERNS NOTICE is essentially a letter, sent to a party who has defamed another party in order to demand the immediate cessation of that defamation. Concerns Notices often include other demands and/or requests as well, depending on the circumstances of the party sending the Concerns Notice, such as:
It is crucial to remember that Concerns Notices, and the way they operate, vary between states and territories in Australia. While the remainder of this article will consider Concerns Notices in Queensland, our office is experienced in the realm of Defamation Law across the entire nation – and you should contact our team at Sambi Legal, or another legal professional, for further state-specific advice and insight..
In Queensland, Concerns Notices are governed by Part 3, Division 1 of the Defamation Act 2005 (Qld).
There are a number of requirements relating to how to prepare a Concerns Notice including but not limited to that it must be made in writing, specify the details of the defamation and specify the details the harm caused as a result of the defamation.
A Concerns Notice must be sent before you can go to court.
After a Concerns Notice has been sent, the recipient has 28 days provide an offer to make amends or otherwise respond. If the recipient does not respond within this time, the aggrieved party may commence court proceedings.
If you receive or want to issue a Concerns Notice, it is important to pay close attention to where the defamation took place and what state or territory you are in, because the specific rules and requirements regarding how a Concerns Notice should be prepared or responded to (including your important time limits) may differ to the above.
In determining whether to issue a Concerns Notice or in deciding how to respond to one, it is important to always consider the possible defences to defamation.
Though this article will only discuss the possible defences of Truth and Honest Opinion respectively, the list of available defences is substantial and subject to rapid change; so it is important to seek legal counsel when trying to understand what defences may apply in your circumstances – to either party.
The primary and arguably most relevant defence to defamation is whether the defamatory material is in fact true. This is called THE TRUTH DEFENCE to defamation.
To succeed in this defence, it must be proven that not only is the literal meaning of the defamatory statement factually true, but any conclusion a reasonable person may make from the statement almost must be true.
While bearing similarities to the Truth Defence, THE HONEST OPINION DEFENCE actually varies substantively from the earlier-described Truth Defence. Differentiating these defences is key to establishing a strong cause of action for yourself, particularly if proceedings continue.
Essentially, the Honest Opinion defence provides a shield to defamation proceedings for a party who claims the defamation made was in fact a fair comment or an honest opinion.
For this defence to succeed, the defamatory imputation must be a comment and not represented as fact, relate to a matter of public interest, be based on true facts, and be made fairly. Where an opinion is made alongside statements of facts, those factual statements must be proven.
If a defamation matter proceeds to court and is successful, the aggrieved party may be entitled to seek an injunction and/or damages.
If necessary, an INJUNCTION is utilised to prevent a person from publishing further defamatory material. It is important to note that a court cannot force someone to retract their statements and apologise.
In addition to an injunction, an aggrieved party may also seek DAMAGES. Damages may be awarded on the basis of non-economic loss and economic loss suffered by a defamed party, as a result from the defamation.
Simply put, a claim for damages concerning non-economic loss may seek to address any harm caused to the aggrieved party’s reputation, the fear experienced, the injured feelings, and/or the psychological effects of the defamation. Alternatively, a claim for economic loss is generally a specific dollar figure that the defamed party is able to demonstrate was lost as a result of the defamation that they suffered.
Sambi Legal has multitudes of experience dealing with defamatory matters throughout Australia. If you are interested in seeking legal advice, or learning more about how the contents of this article relate to your circumstances, we encourage you to contact us for a free Initial Consult with one of our experienced solicitors.
A DISPUTE is broadly defined as a disagreement of some kind. DISPUTE RESOLUTION therefore describes the process undertaken to address this disagreement, and arrive at an outcome that ideally addresses the dispute fairly and effectively.
In many cases, it is not in the best interest of some or all of the parties to a dispute to bring the matter before a Court. In Australia, this does not limit our ability to reach Dispute Resolution – in fact, it broadens the possibilities available for getting the best possible outcome, without the added stress (or often, costs) associated with the Courtroom.
The process of reaching a resolution without litigating (or ‘going to Court’) is widely popular in Australia, and we call it ALTERNATIVE DISPUTE RESOLUTION.
While many view the commencement of legal action against someone as ‘taking them to Court’ (and this is not always untrue), there is actually an array of pathways to Alternative Dispute Resolution available to those who find themselves entangled in the law. Some of the more fundamental processes of alternative dispute resolution are demonstrated in the following linear spectrum, which also provides a map to understanding the layout of this article:
Broadly speaking, there are three PROCESSES to select from when considering which Alternative Dispute Resolution pathway is best for you: Facilitative Processes; Advisory Processes; and Determinative Processes.
The Facilitative Processes of Alternative Dispute Resolution include 1. Conflict Avoidance; 2. Negotiation; and 3. Mediation.
The Advisory Processes of Alternative Dispute Resolution include 4. Conciliation; and 5. Case Appraisal.
The Determinative Processes of Alternative Dispute Resolution include 6. Arbitration; and 7. Litigation.
It is often the case that, while involved in a legal dispute, your sole focus is on being successful. However, there are many other factors that are often just as important to consider: such as the costs of the process, how long it will take, the stress it may cause on you, how much control you have of the outcome, and/or how adversarial the process is.
These other factors are often the things that change depending on which alternative dispute resolution process you are involved in. The above-described spectrum can be viewed so that as you move down from 1. Conflict Avoidance towards 7. Litigation, these factors become more strenuous. The closer you move towards litigation; the more costly, time consuming, formal, rigorous, stressful, uncontrollable, and adversarial the processes become.
As such, if you have the opportunity to choose the platform in which your dispute is resolved, it is essential you consider all aspects of the matter and what you ultimately wish to achieve from the process.
It may be more commercial for you to attempt negotiations with an opposing party before resorting to the involvement of a third party such as a mediator or arbitrator. However, in some circumstances it is important to strike hard and quick by commencing litigation.
Even if you are set on resolving your matter through litigation, you may find that you have no choice but to engage in Alternative Dispute Resolution.
In some cases, alternative dispute resolution is mandatory and is not chosen by the parties.
Sometimes, a Court specifically will specifically order the parties to participate in alternative dispute resolution prior to continuing litigation.
Furthermore, alternative dispute resolution is often legislatively required before the matter can be heard before the court, such is the case in family law matters in which the parties are required to first participate in mediation. In these circumstances, it is still important to have an understanding of the alternative dispute resolution spectrum and what each of the three Processes entails.
The act of CONFLICT AVOIDANCE, or ‘walking away’, sometimes is the best course of action; and is often advisable in matters involving small amounts of money or large amounts of hassle.
Conflict Avoidance involves one or both of the parties simply resolving the matter at hand by leaving it be or facilitating its immediate resolution (such as perhaps paying an amount to a claimant).
NEGOTIATION is the process in which the parties to a dispute communicate and attempt to resolve the matter by reaching an agreed outcome.
Negotiations can be held directly in a single sitting or indirectly in which the parties correspond usually over email/letter communications and often with the help of a lawyer. In Negotiations, the parties often must compromise aspects of what they originally sought at the beginning of the process.
Apart from Conflict Avoidance, Negotiation is almost always the cheapest option of alternative dispute resolution as it does not require the intervention of a third party.
MEDIATION is very similar to direct Negotiation (held often in single sittings) except for the involvement of a Mediator.
A Mediator ordinarily does not assess or evaluate the matter or provide advice on the merits, rather they will act as a guide to facilitate a cooperative and effective agreement between the parties. A Mediator is chosen by the parties and does not favour a particular side of the dispute. Mediation is often a very good process to quickly and cheaply resolve matters that are complex, that involve more than two parties, and those in which the parties are particularly adversarial.
Parties will have to pay the Mediator’s fees to prepare for and attend the Mediation (though this is ordinarily shared amongst the parties).
CONCILIATION and Mediation are very comparable at first glance, except that the third party Conciliator will often be more forceful than a Mediator in their assistance in a dispute.
A Conciliator will also, in addition to encouraging the parties to reach an agreement, provide their advice about the prospects of the matter and make suggestions for potential settlement terms.
During a CASE APPRAISAL, a Case Appraiser will assess the merits of the matter and provide advice the possible outcomes of the matter. Additionally, a Case Appraiser will conclude how they believe the dispute would likely be resolved (and should be resolved) if it were to proceed to Arbitration or Litigation.
After the Case Appraiser’s conclusion, the parties elect whether they either agree with the conclusion; or whether they wish to continue to the Determinative Processes instead.
Much like in a Case Appraisal, in an ARBITRATION the parties will prepare and present their arguments and evidence to an Arbitrator who will ultimately make a conclusion.
However, the key difference between Arbitration and Case Appraisal is that any decision of the arbitrator is legally enforceable and the parties must abide by it, or formally appeal it.
LITIGATION is the process that actually involves getting the matter heard in a Court.
The litigation process is significantly more rigorous than the Alternative Dispute Resolution pathways available, as parties are required to adhere to Orders and/or Directions which often stipulate strict time limits on preparing and filing materials. The procedure followed in any case is also subject to the Court’s procedures, the rules of evidence, and much more. Ultimately, litigation will involve the matter being determined by a Judge(s) who will provide their legally binding Decision(s).
