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

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Defamation Lawyers NSW

What is defamation?

Defamation occurs when someone communicates or otherwise publishes material which is harmful to the reputation of another person (or entity). It doesn’t matter how the material is published, so long as the material is communicated in a comprehensible manner to another person. This includes social media such as Facebook, Twitter, Snapchat, Instagram, Wechat and Weibo.

While historically defamation law distinguished between written defamation (libel) and verbal defamation (slander), that is no longer the case and the publication of defamatory material in any form is actionable.

In NSW, defamation is governed by Defamation Act 2005. Nationally, uniform defamation laws came into effect in Australia in 2006, meaning that the legislation in all other states and territories is largely similar.

Can a company be defamed?

Yes, so long as it is not a public body and falls within one of the following categories:

(a)       if the objects for which the corporation is formed do not include obtaining financial gain for its members or corporators, or

(b)       if the corporation employs fewer than 10 persons, and is not related to another corporation.

If the corporation does not fall within either of the categories above, it has no cause of action for defamation.

NB: in counting employees for the purposes of (b) above, part-time employees are taken into account as an appropriate fraction of a full-time equivalent employee.

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

There are three vital elements that must be established in order to succeed in an action for defamation:

Publication

The publication by a person, to one or more third parties, of the material/comments in question. This is an important point – at the heart of defamation is the damage to your reputation in the eyes of others. While comments made about you to your face may be offensive, if the comments are made one-on-one they cannot be defamatory; they are only capable of being defamatory where they are communicated to someone else (or if someone else is also present). That someone must also be aware of and able to comprehend the material/comments.

Identification

The material/comments in question must either directly identify you, or be capable of identifying you. This may be indirectly, for example, where you are referred to by initials, a nickname, or a photograph, or other distinct details capable of allowing identification.

The test is what the ordinary; would a reasonable person understand who/what the material is referring to? If so, there may be grounds for a defamation action.

Defamatory Meaning

The material/comments must be of a defamatory nature. Unfortunately, there is no ‘hard and fast’ rule as to what is defamatory and what is not; it will depend upon the unique set of facts in each case.

The test the Court will apply is whether the publication is defamatory in the eyes of the “ordinary, reasonable reader.” This is likely to be the case where: –

  • The publication is likely to expose the plaintiff to ridicule, hatred or contempt;
  • The publication is likely to cause the plaintiff to be shunned, shamed or avoided by others;
  • The publication is likely to lower the plaintiff in the estimation of right-thinking members of society;
  • The publication is likely to cause damage to the plaintiff’s professional reputation by implying a lack of qualification, skill, knowledge, capacity, judgment or efficiency in the conduct of his or her trade or business.

Is there a time limit for defamation claims?

If you have been defamed and wish to take legal action against the publisher of the defamatory material, legal proceedings must be commenced within 12 months of the publication of the defamatory material.

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


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