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.
Elements of Defamation
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:
- Whether the item is actually defamatory; and
- Whether the item refers to the ‘defamed’ party; and
- Whether the item has been published or provided to a third party.
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.
The First Element: Is It Defamatory?
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:
- Exposed the person to hatred, ridicule or contempt; or
- Lowered the person in the estimation of others; or
- Injured the person in their trade or profession; or
- Caused the person to be shunned or avoided.
The Second Element: Does It Refer To The ‘Defamed’ Party?
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.
The Third Element: Publication/Third-Party Provision
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.
EXAMPLE
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.
What Is A ‘Concerns Notice’?
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:
- The provision of an apology;
- The public retraction of the defamation;
- The agreement to not publish any further defamatory content;
- Payment to the defamed party, for losses caused by the defamation and/or for the costs of legal fees incurred by that defamation.
DISCLAIMER
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.
A NOTE FROM SAMBI LEGAL
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.
Defences Against Defamation
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 First Defence: Truth
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.
The Second Defence: Honest Opinion
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.
Succeeding in Defamation Proceedings
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.
