The Ultimate Guide to Defamation in Australia

If you’re in the business of writing or publishing public comments or pictures, you must make sure you understand the basis of defamation law in Australia.

In this guide, we will take you through the critical things you should know about defamation law and we provide some practical steps on how to avoid making defamatory statements.

This article covers the following topics relating to defamation law in Australia. You can skip ahead to the relevant section by clicking the links below:

1. What is defamation under Australian law?
2. What are the elements of defamation in Australia?
3. Australian case law examples of defamation
4. What are the defences to defamation in Australia?
5. Defamation is a civil law matter
6. What compensation is available if defamation is proven?
7. Can a company sue for defamation in Australia?

What is defamation under Australian law?

A defamatory statement is a false statement that is published (i.e. in written form) that would lead a reader to view the complainant in a negative light or if it would cause the complainant to be a victim of mockery.

A false statement about a person that is published and brings them into disrepute is widely referred to as being ‘defamatory’. However, to prove that a written statement is defamatory under Australian law requires the complainant to prove all of the ‘elements’.

Under defamation law in Australia, written material, pictures, or spoken statements that are published can give rise to a claim for defamation. Defamatory material can also include social media posts, comments and replies to social media posts.

What are the elements of defamation in Australia?

Defamation law is set out in State and Territory legislation. Each defamation law has its own requirements, however, they largely follow the same general principles.

Broadly speaking, the elements required to be present in order to prove a claim for defamation in Australia are as follows.

The statement must convey a defamatory meaning or imputation

It is important to remember that a person must prove that the words published would make others (i.e. an ordinary reasonable reader) either think less, shun or avoid the individual. It is not enough that the words portray the defamed person in a negative, or even in a ridiculous light.

The relevant standard of “the ordinary reasonable reader” recognises that such a reader may draw inferences from defamatory material.

The courts have held that the intention of the author or publisher is not relevant to whether the statement is defamatory.

It is reasonable to interpret the statement as referring to the defamed person

A reference to a defamed person can be:

1. direct – by naming the person; or
2. indirect – by referring to the person (other than by naming them) and in such a way that a person would understand the person as being the one referred to in the publication.

As with the first element, the intention of the author or publisher is not relevant to whether the statement is defamatory.

If a person is named in the defamatory material, that person is not obliged to call evidence (ref: ConsolidatedTrust Co Ltd v Browne [1948] NSWStRp 71; (1948) 49 SR (NSW) 86 at 90-91 per Jordan CJ).

The statement has been published to at least one person, other than the defamed person or writer/publisher

A complainant must prove that the material was published to at least one other person, apart from the person or company that wrote or published the material, or to themselves.

A defamed person has one year to start court proceedings unless they can prove to the courts that it was not reasonable under the circumstances to do so. If they can prove this, then the period will be extended to three years. However, courts rarely grant an extension to this 12-month limitation period.

You should seek urgent legal advice if the 12-month time limit is about to expire or has already expired.

Publishers that post on the internet need to exercise greater care than print media publishers. This is because the one-year time limitation period is reset and the clock starts again each day the material is available to be downloaded.

Australian case law examples of defamation

What are the defences to a defamation claim?

There are several defences to a claim for defamation, including:

• The accused or defendant proved that the published news was significantly true;
• The accused or defendant was presenting their honest reviews or opinions, instead of making a statement; and
• The defendant or the accused unknowingly distributed all the defaming material, like an employee of a media organisation.

Defamation is a civil law matter

Defamation law is a civil matter (i.e. between individuals or companies), not a criminal offence.

This means that police do not get involved in disputes relating to defamation.

A person that is sued for defamation may have to pay damages to the defamed person and may also have court costs and legal fees awarded against them.

What compensation is available if defamation is proven?

The amount of compensation awarded for defamation is highly dependent on the circumstances of each case. There is no fixed formula or way that the courts calculate defamation damages.

In Australia, these damages can sometimes be a small amount or sometimes in millions of dollars.

However, a larger amount of compensation is likely to be awarded where the defamed person has suffered serious and major harm, usually in the form of financial and personal hardship.

If you are considering starting a claim for defamation or you need to defend a claim, you should consider that court proceedings are usually expensive. You must seek legal advice about the likely legal costs before powering ahead with a defamation claim.

Can a company sue for defamation in Australia?

Not-for-profit organisations or smaller companies may sue for defamation, however, large companies are not able to sue for defamation in Australia.

According to the Uniform Defamation Legislation, which is applied in every State and Territory, a company can not sue for defamation.

The exception to this rule is where the company is considered to be an ‘excluded corporation’. An excluded corporation is either a non-profit organisation or a company with 10 or fewer employees.

Harmful deceit as an alternative to defamation

Although a company cannot sue for defamation, it can still sue for any harmful deceit or fraud. Harmful deceit could be a false statement regarding the business that had been published to a third-party platform (such as a social media platform or an online review), made hatefully and read by the public, causing severe damage to the business and its reputation.

However, it is more difficult to prove harmful deceit than defamation, for two main reasons:

1. The first one is that the complainant must prove that the accused or defendant made the false statement hatefully, which means that they made it intending to harm the complainant.
2. The second reason is that the complainant must prove that the false statement has caused some actual and serious damage to the complainant like a loss in sales or more customers asking for refunds, etc.

These limits may be difficult to prove, based on the case’s facts. However, if you are a company or represent a company whose business or reputation has been harmed by a publication, then you must seek immediate legal advice to make sure if you need to take this legal action or not.

How can Prosper Law help?

Prosper Law can provide you with legal advice for a fixed fee. We are available online 24/7 and provide legal advice to businesses and people across Australia.

Contact the team today for a free consultation regarding your legal matter.