The law of defamation is designed to protect an individual’s reputation, while still maintaining the right to free speech. In South Australia it is governed by the common law and the Defamation Act. Previously, defamation was divided into two categories – libel and slander – but now it is all called defamation. To prove defamation there are three elements – that the material was communicated to another person/s, that the material identifies someone and the material is defamatory. The particular person does not have to be specifically identified in the statement if the words used cause people who know the complainant to believe that they are being referred to in the material.
The test of whether a statement is defamatory depends on the standards of the community as a whole and that of a section or group. It is not a defence that a person was only repeating what another said, or that the person who heard or read it did not believe it. Depending on the amount of damages sought, actions can be brought in the Supreme, District or Magistrates Court. In deciding how much to award in defamation proceedings, the court must ensure that there is an appropriate and rational relationship between the harm suffered and the amount awarded.
- Innocent dissemination protects people such as newsagents, booksellers and internet service providers who unwittingly publish defamatory matter.
- Truth, but the defamer must prove that all of the material is substantially correct.
- If the matter contains several claims, some true and some not and the plaintiff’s reputation is not harmed any more than it would be from only the claims that are true.
- If the words used are not a statement of fact but of opinion. The words must be considered in context. The opinions must be based on facts, be fair and honestly held and not motivated by malice.
- If it is in public interest, which includes statements about the conduct of people holding public office and comments on artistic works such as books and plays or a review of a restaurant’s food. The Act provides a defence of honest opinion if the opinion concerns a matter of public interest and is substantially true or is based on privileged material.
- If protected by absolute privilege there can be no defamation even if the words are false and published with malice. This includes statements made in parliamentary proceedings and some communications between government officials in their official duties.
- Qualified privilege occurs where the person making the statement has a legal, social or moral duty to comment and the recipient has an interest to receive it. It includes giving a reference for a job applicant, communications between teachers and parents or between employers and employees. The person making the statements must not be motivated by malice and must believe that what they say is true.
- If it is a report of certain proceedings, including parliamentary, judicial and government proceedings and incorporated company shareholders meetings.
- If the words were not intended to be taken seriously, were a joke or part of vulgar abuse and as such did not have a defamatory meaning to those hearing or seeing the words.
- If the statement was one that was unlikely to cause the plaintiff any harm, there is a defence of triviality.
- The Whistleblowers Protection Act protects someone who discloses corruption, mal-administration, waste, or illegal conduct in the public sector. In the private sector, it can also protect whistleblowers who disclose corruption provided it is reported to a Government Minister or the appropriate authority. However, they are only protected if they believe that the statements are true.
- If a publisher receives notice from someone who claims to have been defamed, the publisher can formally offer to make amends. This must include publishing a correction and paying any expenses incurred by the person defamed. It may include an apology and an offer of compensation. It must be made within 28 days. If accepted, it ends the matter. If not, and is later found by the court to be a reasonable offer, then it is a defence to legal action.
- An apology is not a defence. If a publisher apologises, it is not an admission of fault and can’t be used against them. However, a properly published apology minimises the damage done by the publication and it can be used to reduce damages.
Some groups of people cannot sue for defamation, but may be able to sue through another type of action called injurious falsehood. They must show that the statement is false and was intended to cause loss and there has to be an actual financial loss. The groups that cannot sue for defamation are;
- Public bodies such as local councils. However, individuals employed by or elected to government authorities may be able to sue in defamation.
- Unless their group is so small that a person can show they were identifiable, general groups (such as lawyers, doctors, Catholics, Greeks).
- A group that is not a legal entity (such as social clubs and unincorporated associations).Again, if the group is small enough, individuals may sue.
- A company which employs more than 10 people.
- A dead person.
There is an offence of criminal defamation under South Australian law. The Criminal Law Consolidation Act states that the publishing of defamatory material with the intention to, or with reckless indifference to whether it would, cause serious harm carries a maximum penalty of 3 years imprisonment. The defences available to this charge are the same as available in a civil defamation action.