Defamation in Queensland

Defamation in Queensland is a type of civil law action known as a tort. All of Australia now has the same defamation laws to promote quick and non-litigious methods for resolving defamation disputes, and provide effective and fair remedies, while not unreasonably limiting freedom of expression.

The British legal system developed defamation under common law where it was treated as either libel or slander. The traditional distinction was that libel was defamation in a written publication and slander was defamation in a spoken communication. Queensland abolished the distinction between libel and slander when it adopted the Defamation Act 2005.

What is defamation in Queensland?

In Queensland, defamation is the publication of unsubstantiated ‘facts’ that seriously harms the reputation of an individual (the ‘aggrieved’). The purpose of a defamation action is to correct public perceptions and compensate the aggrieved for harms caused.

Queensland’s Defamation Act defines ‘publication’ to include:

• online media
• writings
• drawings, and
• speech.

The ‘publisher’ is the person who made the defamatory statement.

With the amount of information published on the internet, especially through social media, the law of defamation has become increasingly relevant. The liability of internet content hosts and service providers, to the extent they are unaware of the truth or falsity of the content published on their websites, is limited by the Commonwealth Broadcasting Services Act 1992. However, it should be noted that the publication online of any defamatory content, including the creation of links to defamatory content or emailing defamatory content to others, can create liability where it leads to serious harm to the person’s reputation.

Bringing a claim of defamation in Queensland

The limitation period for a claim of defamation in Queensland is one year. However, an aggrieved can petition to extend the limitation period to three years in certain extraordinary situations.

An aggrieved cannot bring a defamation claim against a deceased person. Profit-driven corporations with ten or more employees cannot be considered ‘aggrieved’.

If a defamatory statement is published only within Queensland, then Queensland’s Defamation Act applies. Where a statement is published in Queensland and other jurisdictions, Queensland’s act may not apply because the applicable law will be the jurisdiction most closely connected to the harm.

Elements of a defamation claim

Defamation in Queensland is the:

• communication or publication – this is defined to include all types of communications media, including print and speech.
• to any third party – the communication does not necessarily have to be made to the public, but it must be made to someone other than the aggrieved.
• of a defamatory matter – a defamatory matter may be an untruth or a false representation, called an imputation. A publication is defamatory if someone’s reputation has been damaged or could reasonably be considered at risk of damage by the defamatory content.
• That cause serious harm to the reputation of the person – a defamation claim will not succeed if the harm caused to the individual’s reputation is only minor or trivial
• about, concerning or identifying a person – untrue statements or imputations that do not identify an aggrieved will not create a cause of action for defamation.
• without lawful excuse – if all the previous elements have been met, but there is a lawful excuse then the defamation claim will not survive.

Defences

There are many defences to defamation in Queensland’s Defamation Act, including:

• justification under section 25 of the Defamation Act 2005 – meaning the published statement is substantially true
• contextual truth under section 26 of the Defamation Act 2005 – the published statement made imputations that are substantially true so the aggrieved could not have been harmed
• absolute privilege under section 27 of the Defamation Act 2005– publications made during parliamentary debates, or in court or tribunal judgments are privileged and immune from defamation claims
• public document under section 28 of the Defamation Act 2005 – the publication content is also contained in a public document, meaning a parliamentary debate, court or tribunal judgment, or other governmental publication
• fair report under section 29 of the Defamation Act 2005 – the publication made during the course of, or previously contained in any fair report of, a proceeding of public concern
• qualified privilege under section 30 of the Defamation Act 2005 – publication was obligatory for some legal, social or moral reason, but there are limitations
• honest opinion under section 31 of the Defamation Act 2005 – the publication was a statement of opinion rather than fact
• innocent dissemination under section 32 of the Defamation Act 2005 – the distributor of the publication did not have control over the content of the publication
• triviality – the aggrieved is unlikely to sustain serious harm as required under section 10A of the Defamation Act 2005.

Apologies

A publisher’s apology may be considered as evidence to mitigate damages, but not as evidence of fault or liability.

Offers to make amends

If an individual is notified that they are being sued for defamation, they have 28 days to make an offer of amends. The offer is a statutorily prescribed means by which to satisfy the dual purposes of a defamation action – to correct public perceptions and to compensate the aggrieved for harm caused.

An offer of amends must contain a correction to the publication and an offer to pay the aggrieved’s costs. If two people have published the same material, an offer of amends on behalf of one publisher does not affect the liability of the other publisher.

As long as a publisher makes a reasonable offer of amends, the aggrieved party is encouraged to accept it. If the aggrieved does not, the publisher then has a defence against the claim.

Like apologies, offers to make amends cannot be considered evidence for liability purposes in legal proceedings.

Damages

As in other jurisdictions, Queensland’s Defamation Act caps non-economic damages at $250,000, which is adjusted regularly in line with inflation.

Criminal defamation in Queensland

Criminal defamation in Queensland is a misdemeanour. Criminal proceedings for defamation may be initiated if the publisher knew the statement was false or had no regard as to its truth or falsity at the time of publication, and the publisher intended to cause serious harm to the aggrieved.

The penalty for publication of malicious defamatory content is a fine in any amount the court sees fit, and/or imprisonment for up to three years.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

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