What is defamation?
Defamation is where a person or small business seeks damages for loss of reputation due to someone publishing or otherwise distributing defamatory material that causes others to think less of them. Defamatory material can take many forms including blogs, articles, novels, poems, photos, songs, emails, cartoons, drawings, paintings, online reviews, social media posts, and more.
Defamatory matter can also be broadcast or spoken (e.g., a person might be defamed on a radio show or in a public presentation). If you state or spread something defamatory in any public forum, including over the internet, you could be taken to court.
Defamation law is designed to protect all Australians from false or damaging statements being made about them that may cause harm to their personal or professional reputation. It enables those who have been defamed to seek compensation for financial and other losses resulting from a defamatory publication of any kind.
In recent years, defamation claims have become more prominent given the nature and volume of content published on digital platforms and social media. Defamation law aims to strike a balance between permitting the free distribution of information, ideas, and opinions, and protecting individuals and small businesses from having their reputations tarnished or destroyed.
Making a defamation claim
If you can prove that you are the subject of a communication to a third party that contains false statements which may damage your reputation, you may be able to make a defamation claim.
To claim compensation for reputational damage, you must be able to prove three things:
- That the defamatory material was published, and that the statements in the publication are not substantiated by facts
- That you or your business were clearly identified in it
- That it caused or is continuing to cause harm to your reputation.
There are numerous speedy and non-litigious methods for resolving defamation disputes. If you believe you have been defamed, you should seek legal advice as soon as possible to prevent any further spread of the defamatory material and nip the damage in the bud.
Defending yourself against a defamation claim
If you've been accused of making a defamatory comment or publishing defamatory material, you should seek legal advice immediately as there may be consequences for not responding in an appropriate timeframe.
It's important to note that the cost and stress associated with bringing a case before court can often be avoided. Most defamation cases don't proceed and very few go to trial. Our experienced and knowledgable lawyers can provide expert advice about how to negotiate a positive outcome and ensure that your reputation isn't damaged if you're faced with a claim.
Ultimately, if the published material is true, there's no defamation. Some common defences against defamation include:
- That the publication was an honest opinion, rather than statement of fact
- That the publication was of public concern or substantially true
- That the publication was obligatory for a legal, social or moral reason
- That the aggrieved party is unlikely to sustain any harm to their reputation
- That the defendant did not know or ought not to have known that the published material was defamatory (e.g., a bookseller may not have known the contents of a publication placed on display)
- That the publication was made in a privileged context such as a parliamentary debate, in court or in a tribunal judgment.
How to avoid the risks
If you're a small business or individual with a public profile, it's natural to harbour some concerns about the risks of being landed with a defamation claim. Five golden rules to follow to minimise these risks are:
- Be aware of what you’re saying
- Only say what you can prove
- Use the language of opinion
- Convey your meaning clearly
- Bear in mind who you’re dealing with.
We provide a full suite of pre-publication review services to help limit your exposure to unwanted claims and offer exclusive access to our in-house media team. No matter how high the stakes, we'll ensure your risks of getting sued for defamation are low.
We can help you protect your reputation
Our defamation lawyers have a long and proud history of protecting our clients from reputational damage and advising on matters of reputational risk. Our caring and capable team can successfully guide you through either bringing or defending a defamation claim.
We have acted for current and former members of federal parliament as well as high-profile media and business figures. We have also represented members of the public against harmful attacks to their character and/or business.
We know how to ensure that your rights are fairly upheld and obtain corrections, rights of reply or public apologies if it is shown that defamation has occurred. Talk to us today about how we can help you.
Our defamation cases are run on a fee for service basis, meaning that fees and costs are paid for as they arise throughout the case. We'll provide you with a costs agreement before asking you to sign anything which outlines our fees and the likely costs involved in your case.
Before we start any work on your behalf, we'll explain to you in detail:
- How we calculate our fees
- The likely costs involved to prepare and run your case
- Any additional costs that may be incurred
- Any costs that may be recoverable from, or payable by you, to the other party.
Our fees are never calculated as a set percentage of the compensation you will receive if your case is successful. This is common in the United States, but is not permitted in Australia. You'll only ever be charged for the work we perform for you.