Writing about real people can be a powerful way to tell stories, share experiences, or explore important issues. However, in Australia, defamation laws are strict, and even well-intentioned writers can find themselves in legal trouble (if they aren’t careful).
This guide, prepared by our publishing lawyers, will help you understand defamation laws in Australia and provides actionable insights to ensure your writing stays on the right side of the law.
Key Takeaways
- Defamation occurs when material harms a person’s reputation and causes others to think less of them.
- Defences to defamation include truth, honest opinion, and public interest.
- Writers can mitigate risks by anonymising details, verifying facts, and avoiding ambiguity.
- Even fictional works can lead to defamation claims if characters resemble real individuals.
What is Defamation in Australia?
Defamation occurs when you publish material that harms someone’s reputation, causing others to think less of them. In Australia, defamation laws aim to balance freedom of expression with protecting individuals from reputational harm. For writers, this means you need to tread carefully when your work involves real people.
Defences to defamation claims can include truth (or justification, honest opinion or public interest.
If you want to learn more about defamation, we have written an article specifically on publishing and defamation.
Common Pitfalls for Writers When Writing About Real People
Even experienced writers can unintentionally cross the line into defamation. Here are some common scenarios where issues arise:
Implying Negative Traits
You may not outright accuse someone of wrongdoing, but subtle implications can still be defamatory. For example, describing someone as “controversial” or “untrustworthy” without evidence can lead to defamation claims.
Fictional Characters Resembling Real People
Even if you’re writing fiction, a character that closely resembles a real person could result in a defamation claim if the portrayal is negative.
Relying on Unverified Information
Publishing rumours or unverified claims, even if they come from seemingly reliable sources, can be risky.
Failing to Consider Context
Sometimes, the way a statement is framed or the context in which it appears can change its meaning. For example, a sarcastic comment might be taken literally by some readers.
How Writers Can Protect Themselves from Defamation Claims
Defamation claims can be costly and time-consuming. Here are some practical steps you can take to minimise your risk:
Understand the Defamation Laws in your Region
Familiarising yourself with this legislation can help you assess the risks associated with your work and ensure your content remains legally compliant. Defamation laws in Australia and set at a state and territory level, but generally contain the same essential elements.
You can read the full text of the Defamation Act 2005 (Qld) here.
Anonymise Details Where Possible
If you’re writing about real events or people, consider changing names, locations, and other identifying details. However, be aware that simply changing a name or gender identity of someone in your manuscript may not be enough if other details make the person identifiable. For example, describing someone as “a former CEO of a major Australian bank” might still point to a specific individual.
Stick to Verifiable Facts
Before publishing anything that could be seen as critical or controversial, double-check your facts. Use reliable sources and keep records of your research. If you’re unsure about the accuracy of a statement, leave it out or qualify it with phrases like “allegedly” or “it is reported that.”
Be Clear About Opinions
Opinions are generally protected under Australian defamation law, but only if they are clearly presented as opinions rather than facts. For example, saying “I believe this policy is flawed” is safer than saying “This policy is illegal.” Make sure your opinions are based on facts and relate to matters of public interest.
Understand the Public Interest Defence
If your work addresses issues of public interest (such as exposing corruption or discussing matters of significant importance) you may be able to rely on the public interest defence.
However, this defence requires you to show that the published material was reasonable in the circumstances. This means conducting thorough research and ensuring your work is balanced and fair.
Need help navigating defamation laws? Contact our experienced legal team today for tailored advice.
Real-World Examples
There are a number of high-profile cases that highlight how writing about real people can go wrong, including:
Case Study 1: Rebel Wilson v Bauer Media
Rebel Wilson sued Bauer Media, the publisher of Woman’s Day and other magazines, for a series of articles that falsely claimed she had lied about her age, name, and upbringing.
The court found in Wilson’s favour, awarding her $4.7 million in damages, which was later reduced on appeal.
Case Study 2: Geoffrey Rush v Nationwide News
Geoffrey Rush sued The Daily Telegraph (Nationwide News) for publishing articles alleging inappropriate behaviour during a theatre production.
The court awarded Rush $2.9 million in damages, including compensation for lost earnings. Nationwide News was unsuccessful on their appeal.
Frequently Asked Questions (FAQS)
Can I be sued for defamation if I don’t name the person?
Yes. If someone can reasonably identify themselves from the context or details in your work, they may still have grounds for a claim.
What counts as “serious harm” under Australian law?
“Serious harm” in the context of defamation refers to significant damage to a person’s reputation.
It’s important to note that only individuals and certain not-for-profit organisations can bring defamation claims in Australia. Corporations with 10 or more employees are generally excluded from bringing defamation claims, except in limited circumstances, such as when they are not-for-profit or if they have fewer than 10 employees and are not related to another corporation. In these cases, financial loss may be relevant to proving serious harm
Is satire or parody protected under defamation law?
Satire and parody may be protected under the defence of honest opinion if they meet the necessary criteria. However, this is not guaranteed, so proceed with caution.
How can I verify facts effectively?
Use reputable sources, cross-check information, and keep detailed records of your research. If possible, consult experts or witnesses directly.
What about fictional works?
Many writers assume that fiction works are safe from defamation claims, but this isn’t always the case. If a fictional character closely resembles a real person (especially if they are portrayed negatively) you could still face legal action.
To avoid defamation claims in fiction, conduct ‘negative checking,’ avoid using unique traits that could identify the real person, and include a disclaimer stating all characters are fictional. Learn more about what publishing lawyers can do for you in our article.
What should I do if someone threatens legal action over my work?
If you’ve been put on notice of a claim for defamation, stay calm and:
- don’t respond impulsively; consult a lawyer to assess the claim;
- determine whether the material is truly defamatory and whether any defences apply;
- and in some cases, issuing a retraction or correction can resolve the issue without formal legal proceedings.
If you’re facing a defamation claim, reach out to our legal team today for affordable fixed fee legal guidance.
