Michelle Makela is one of our Legal Practice Directors and the National Practice Manager. She holds a Bachelor of Laws, a Bachelor of Science (Psychology) and a Master’s in Criminology. Michelle has had a varied career, working in commercial litigation, criminal law, family law and estate planning. Michelle joined Go To Court Lawyers in 2011. She now supervises a team of over 80 solicitors across Australia.
The law of defamation exists to protect a person’s reputation, while still preserving the right of free speech. In 2006, all of the Australian states enacted defamation laws that are largely similar. In Tasmania the civil laws are contained in the Defamation Act and the criminal law is outlined in the Criminal Code Act. Defamation includes written and oral material. The material must have been published, it must identify a person/s and it must be defamatory. Publication means that the material was communicated in some way to another person.
If any potential recipients of the material would be able to identify the person it does not matter that they are not specifically named. Material is defamatory if is likely to disparage or discredit someone’s reputation. This will depend on all the circumstances of the publication and the views of society as a whole. Anyone can be defamed. However, corporations cannot sue for defamation unless they either employ less than 10 people or their members are unpaid.
Remedies
There are two remedies for defamation, an injunction to prevent publication and damages after publication. An injunction will not be given if the party publishing the material says they have a defence to a claim for defamation and that it is for the public benefit that the material is published. An award for damages must have a rational relationship to the harm. This is a matter for the court to decide.
Apologies, amends and mitigating damages
An apology is not an admission of fault and it does not prevent or stop court action. However, it will mitigate damages. Amends can be made generally, or in relation to specific statements. It must be made within 28 days of the receipt of a concerns notice setting out the defamation. The offer must state the statement it relates to and include an offer to publish a correction and to pay any reasonable expenses incurred by the person. After accepting amends, the defamed person can’t start, continue or enforce a claim for defamation. It will also mitigate the damages awarded if there has been a publication of similar material and there is another defamation claim already filed in court, or for which the defamed person has already received or agreed to compensation.
Defences
- The defence of justification – if a defendant can prove that the statement complained about is substantially true.
- The defence of contextual truth – if the context the statement appears in contains other statements that are substantially true and the defamatory statement does no further harm to the plaintiff’s reputation than the harm done by the true statements.
- The defence of absolute privilege and the publication of public documents – covers parliamentary privilege, and court documents when the publication of documents is in the course of their usual proceedings. Publication of public documents is a defence where the statement is in a public document or a summary of that document.
- The defence of qualified privilege – covers circumstances where the material is published when providing information to someone who has an interest in receiving it, and the conduct of the defendant was reasonable in the circumstances. The extent to which the matter was of public interest, the seriousness of the material published and the nature of the defendant’s business will be taken into account. It is not a valid defence if it can be shown that the publication was motivated by malice.
- The defence of honest opinion – requires three things to be proved, that the statement was an expression of opinion not a statement of fact, that it related to a matter of public interest and was based on proper evidence.
- The defence of innocent dissemination – can be relied on where the defendant is a subordinate distributor. Examples of subordinate distributors include newsagents, electronic distributors, and librarians.
- Triviality – is where the circumstances of publication were such that the plaintiff was unlikely to sustain any damage to their reputation. The court considers the nature of the allegation not the size of the audience.
Criminal defamation
A person who publishes defamatory material knowing it is, or not caring if it is, false with the intention to, or not having regard to whether it will, cause serious harm to the victim or any other person is guilty of a crime. All of the defences available to a civil action apply to a criminal charge. A criminal charge does not prevent a civil action being taken for the same statement.
