What is defamation?
Your reputation is how you and your business are seen by others. It is the foundation of trust and confidence in a person or business and once it has been harmed or lost, it has significant personal and professional consequences.
Defamation occurs where a false publication about someone that has the effect of harming their reputation is communicated from one person to another.
While many high profile defamation cases involve celebrities and mainstream media, the value of a positive reputation to any person or business holds value that is worth protecting.
Key elements of defamation
An action for defamation may arise where:
1. there has been a publication to one or more other people;
2. you or your business are identified in the publication; and
3. the publication of it causes others to think less of you or your business.
The law of defamation in Australia is concerned with the meaning of a publication rather than the particular words or images used. This reflects the position that a defamatory insinuation can cause as much reputational harm as an express statement.
Increasing online communication has led to a significant increase in online defamation. A defamatory statement, image or meme can be shared, reposted and distributed through the grapevine instantly at the click of a button.
In addition to traditional social media platforms such as Facebook, Instagram and Twitter, emerging platforms such as TikTok and WhatsApp are increasingly being used to communicate defamatory material both openly and in private groups. WeChat, LinkedIn, Wikipedia and Reddit blogs are also commonly used to circulate defamatory material.
A further emerging online trend is the publication of false reviews of people and businesses on platforms such as Google Reviews which can cause significant harm when reviews are published prominently next to search results. For people and businesses with an ecommerce focus, such reviews can be particularly damaging.
Making a defamation claim
Why take action for defamation?
If you are aware that defamatory material is being circulated about you or your business, the law of defamation provides an avenue for you to protect or restore your reputation, obtain compensation for harm caused and inform public debate and discussion about the defamatory matter.
It is our experience that when combined with an early and appropriately designed public relations and media strategy, initiating a defamation claim can achieve significant results and stop further harm from being caused.
Who can bring an action for defamation in Australia?
- Individuals, including foreign citizens.
- Companies with less than 10 employees.
- Companies that are incorporated on a not-for-profit basis.
Companies that employ more than 10 employees, unincorporated associations and public institutions are excluded from bringing actions for defamation in Australia. However, individuals associated with these entities, such as directors, officers and employees, may bring claims for defamation even where the defamatory matter also defames the excluded entity.
Who can be sued for defamation in Australia?
Individuals are the primary respondents to defamation actions; however, a person’s employer or principal may be liable where the defamatory matter is published in the course of their employment or agency. It is increasingly common for defamation to be included within the scope of professional indemnity insurance policies.
If the publisher of a defamatory matter is not known, including where there are posts on social media made anonymously or using a pseudonym, it is open to a potential claimant to seek orders from a court for preliminary discovery to determine the identity of the publisher.
The usual process for bringing a defamation action in Australia
The usual process for bringing a defamation action where the publisher is known is as follows:
The defamed person or company issues a letter of demand, also known as a concerns notice, to the publisher raising the defamatory matter, identifying the defamatory imputations and outlining the steps the defamed person wishes the publisher to take to remedy the situation. This may include an apology, public retraction and payment of costs and damages.
There is an opportunity for the publisher to respond to the concerns notice, including with an ‘offer to make amends’, the non-acceptance of which can have consequences in any subsequent proceeding in relation to the defamatory matter.
If resolution cannot be reached, the commencement of proceedings in the courts of the relevant State or Territory or, in some cases, the Federal Court.
Many defamation actions are able to be resolved at an early stage, prior to the commencement of proceedings. The issuing of a concerns notice does not mean that a defamed person or business is required to take the next step of commencing proceedings; however, such steps may be necessary if an acceptable resolution is unable to be achieved.
When to bring a defamation claim?
The more people who receive the defamatory matter, the greater the reputational harm. It is therefore necessary to take action as soon as you become aware that there are defamatory matters being circulated about you or your business.
Defamation proceedings must be commenced within 12 months from the date of publication. There is limited scope for a court to extend this period in certain circumstances, but only up to a maximum of three years.
Responding to a defamation claim
If you receive a concerns notice or are sued for defamation, an initial consideration should be the offering of an apology and retraction of the defamatory matters alleged. The offering of an apology does not compromise your ability to defend a defamation claim but is likely to go some way to addressing the concerns raised.
If the publication was made online, steps can be taken to take down the defamatory publication. In previous matters, we have assisted clients to remove defamatory material from Facebook, adverse Google reviews and other social media channels.
The pre-litigation process also provides an opportunity for you to seek to resolve the matter at an early stage through an offer to make amends. Each defamation case is different; however, the early resolution of a defamation dispute on mutually acceptable terms is always preferable to a drawn out court process.
Defamation in the corporate environment
Preservation of reputation is particularly heightened in a corporate environment where the loss of trust and confidence can compromise an entire career or business. In this context, publications outside of professional life can be particularly damaging.
Some particular examples of where defamatory matters can arise in a corporate context are as follows:
- Employment – either between people within an organisation, or by employees against the company and its leaders. Performance management and terminations or resignations are particularly susceptible to defamatory publications.
- Personal and social – the breakdown of personal relationships, conflict within school communities, neighbourhood disputes and conflict within sporting organisations can give rise to defamatory publications that can cause significant harm to professional reputation.
- Corporate rivalry – statements made about the leaders of other organisations and their businesses.
In the corporate context, an alternative claim of injurious falsehood is also potentially available in cases where there has been a false and malicious publication made about a business or its products that has caused identifiable harm. Unlike defamation, the limitation period for injurious falsehood is six years and this action can potentially support an injunction being granted by a court to prohibit further publication.
How we can help
We act for individuals and companies that have been defamed by others or have been accused of doing so.
Have you been defamed?
If you have become aware of defamatory material being circulated about you or your business, we can advise and assist you in relation to strategies for addressing harm to reputation, including introductions to trusted public relations consultants. In particular, we can issue a concerns notice on your behalf on an urgent basis to attempt to prevent further harm from being done.
Have you received a concerns notice or said or written something you regret?
If you have received a concerns notice or have otherwise become aware that you may have published or circulated defamatory material, we can advise you in relation to potential liability and respond on your behalf, including the preparation of an appropriate offer to make amends.
Where risk has been identified in relation to draft material, we can provide practical defamation risk advice to assist you to avoid or minimise potential exposure. In doing so, we take a pragmatic approach and can help you to communicate your message in a way which is least likely to attract risk.
If defamation is a key risk for your business, we are available to conduct training sessions for your business, including strategies for how to minimise defamation risk and how to appropriately respond when issues arise.
Defamation| 09 Mar 2021
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