Are there defences to defamation?
Brendan Nyst explains your rights.

What can I do if someone defames me online? Brendan Nyst explains.

Can I sue for defamation? Hear from Brendan Nyst on legal options.

DEFAMATION LAWYERS

What is defamation?

If someone publishes something about you that damages your reputation and it has a tendency to cause people to shun, ridicule or avoid you, then by definition of the Defamation Act, you have been defamed. The law also says if you have been defamed you are entitled to be compensated for that defamation in damages.

Defamatory publication is very often by writing, such as in a newspaper or blog on the internet or in a letter. However, it doesn’t necessarily have to be in writing. It may be some verbal statement on either radio, tv or online, or at a public meeting, including informally talking about someone to other people. It could even be something said in relatively private circumstances where someone makes a disparaging comment perhaps to an employer or another business associate, and it causes the person damage.

If that defamation causes you loss, for example if it’s said to your boss and you are fired as a result, or it’s said to your customer or prospective customer and your business suffers as a result, or even if it is said to a complete stranger and your reputation and standing in the community are thereby affected, you have the right to recover damages for that loss.

What can I do if someone defames me?

The Defamation Act 2005 in Queensland sets out a regime for providing notice to an offender. This generally involves a letter to request the removal of the content and perhaps some other relief such as an apology and legal costs. If you are not satisfied with the response you receive then you can take court action.

Defamation on the internet

In recent years we have seen a large growth in our defamation practice arising from online defamation. An increasing reliance on the internet by both businesses and consumers means companies are nowadays much more invested in their online presence. Naturally businesses, particularly small businesses, are much more conscious of online publication and comment which defames them in some way. Understandably, companies will generally react swiftly to comments which overstep the mark on social media forums or on online review forums and search engines, such as Google.

Generally, there are two ways a business can address defamation online. The first is to demand action from the publishing site or search engine such as Facebook or Google. If these companies are alerted to clearly defamatory content, they will usually take action to remove the comment or, in the case of Google, remove the link to the offending website.

There has been a raft of recent court cases by Australians bringing claims against these types of companies for failure to remove defamatory publications. The liability of US-based Google Incorporated, which operates the global search engine, to remove defamatory content in Australia has been the subject of extensive recent debate and continues to be litigated in Australian courts. Of course, taking on big multi-national companies on those issues can be a somewhat uncertain and unattractive proposition, so more often than not complaints are directed at the initiating source of the publication.

Are there defences against defamation?

There are various defences to defamation – the most common and obvious one is the defence of substantial truth. If a statement or writing is said to be defamatory, but is shown to be true or substantially true, then that provides a complete defence to any damages action for the defamation.

Even when a statement is not true at all, defences are still available in certain circumstances. For example, when a statement is made in a privileged circumstance such as during the course of parliamentary proceedings or in a court or a tribunal or hearing then the privilege will defeat the defamation claim.

If the defamatory statements are contained in a public document or a fair report of any proceedings of public concern and are published honestly for the information of the public or the advancement of education, then that constitutes a complete defence to the defamation action.

If the maker of the defamatory statement can prove that it was reasonably made for the purposes of providing information to a person with a legitimate interest in the subject, and provided they were not acting maliciously, they will be protected from defamation action. Various other defences include honest opinion, innocent dissemination and triviality, which can all be raised in defence of actions for damages for defamation.

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