The function of Defamation Law is to protect the reputation of individuals and businesses by providing a deterrent in the form of compensation.

Defamation Lawyers NSW

What is defamation?

Defamation occurs when someone communicates material which has the effect of, or leads to, damaging the reputation of another person or entity. It doesn’t matter how the communication occurs (spoken words, writing, photos, video, drawings, etc.) or what material is communicated. It is unlawful and is governed by Defamation Act 2005.

There are two traditional forms of defamation:

  • Libel – A defamatory matter resulting from communication in a permanent format, such as writing, photos, videos and drawings.
  • Slander – A defamatory matter resulting from communication in a transient format, such as spoken words and potentially even messages on SnapChat (because all messages on SnapChat are deleted shortly after they are communicated).

Strict time limits do apply to defamation claims. For this reason, it is recommended you seek legal advice immediately when you become aware you have been defamed.

When has defamation actually occurred and what would need to be proved?

Defamation has occurred when these 4 statements are true:

  1. A person (the defendant) has communicated; and
  2. The communication identifies, or is directly about, another person (the plaintiff); and
  3. The defendant has communicated to one or more third parties (including online and overseas); and
  4. The communication contains content that is defamatory.

All of the above will need to be proved by the plaintiff if they are to achieve a successful outcome.

The 3 most important factors to consider in any potential defamation case are:

  1. the plaintiff must be clearly identifiable in the communication;
  2. the communication must be damaging to the plaintiffs reputation; and
  3. the communication is in some way false or unsubstantiated.

When is communication actually defamatory?

Defamatory communication is:

  • Likely to damage the reputation of the plaintiff by exposing them to ridicule, hatred or contempt; and/or
  • Likely to make the plaintiff be avoided, shamed or shunned; and/or
  • Likely to lower the way others estimate/see the plaintiff.

Can I claim for defamation?

If you have been defamed (see above) and you wish to take legal action for defamation, then legal proceedings must be commenced within 12 months of the publication of the defamatory material.

However, you should consider very carefully any offer by the publisher to make amends… as there can be serious implications if you commence proceedings after a reasonable offer to make amends has been made.

If you have been the victim of defamation we recommend you seek legal advice immediately so strategies can be put in place to minimise the risk of any further damage to your reputation.

I have been accused of defamation, what should I do?

If you have received a cease and desist letter and have been accused of defamation you should seek legal advice immediately, as failing to respond to the accusation in an appropriate time-frame could lead to further consequences.

What are the defences to defamation?

If you have been accused, there are 4 principle defences to a defamation claim:

  1. Truth & Justification – If it can be proven that the communication is ‘substantially true’. Pleas can also be made for ‘contextual truth’, which implies that the communication was truthful in the context of the publication – to discuss this further, please give us a call;
  2. Comment – If it can be proven that the communication is an objectively fair comment that is based on fact and the matter in question was of public interest. For example, a reporter who comments publicly on an oil company who allegedly engaged in the dumping of waste;
  3. Privilege – This is a defence that sits between ‘Truth’ and ‘Comment’. This defence accepts that the communication was defamatory, but argues that the ‘public interest’ associated with the communication prevails over the reputational harm caused. For example, a blogger who writes a defamatory article about a politician who they falsely believed was taking a bribe; and
  4. Reasonable Offer to Make Amends – If a reasonable offer to make amends is made in relation to the defamation in question but is not accepted, it is a defence to an action for defamation against the publisher.

What are the first few steps in the defamation claims process?

The first step involves getting in contact with our Defamation Team to book in a ‘Preliminary Assessment’ phone conference, to determine if you have a claim that is worth proceeding with.

If it is determined that you have a claim worth proceeding with, the second step in the process usually involves us drafting and sending a cease and desist letter to the defendant. However, in some claims, a cease and desist letter may not be appropriate.

If the cease and desist letter fails to generate the response you were hoping for, we’ll need to proceed to Court.

See Also: Everything you need to know about cease and desist letters


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