A simple definition of the word ‘defamation’ is to damage the good reputation of someone. However, Australian defamation law is more complex than this.
To ensure consistency throughout Australia, each of Australia’s states and territories has enacted uniform defamation laws (Uniform Defamation Laws). Accordingly, for the most part, the requirements to establish defamation are consistent throughout Australia.
Under the Uniform Defamation Laws, defamation generally occurs when the below four requirements are satisfied. For all requirements, the intention of the publisher is not relevant.
- Information is published to one or more third parties
‘Publishing’ a statement is not limited to publishing it in a newspaper.
Information can be published when a statement is made to a third party:
- orally, through in-person conversations, phone calls, videos or recordings; or
- in writing, such as through emails, text messages, news articles online or hardcopy, books, text on website pages, social media posts and comments, and posts in online forums.
Stay tuned for more information on online content, including when such information is deemed to have been ‘published’, in an upcoming article.
- Who can be defamed?
Usually, only an individual can be defamed. However, in certain, limited, circumstances, a company can also be defamed – see here.
To amount to defamation, the identity of the person who has been defamed must be identifiable either:
- directly by the naming of the individual or company; or
- indirectly by the identity of the person/company being inferred in the publication and a reasonable third party being able to identify the person/company from such inference.
- The information has defamatory imputations about the identified person
The statement that has been published about an individual must convey an inference that would cause an ordinary and reasonable third party to think less of or avoid the person. It is not sufficient that the information portrays the individual negatively.
For example, information that implies a person has broken the law, associated with corrupt individuals, or acted unconscionably in some manner would be considered to contain defamatory imputations.
- The information caused, or is likely to cause, serious harm to the person’s reputation
The final requirement was included in 2021 amendments to the Uniform Defamation Laws and applies in all states and territories except Western Australia and the Northern Territory.
Practically, the requirement of serious harm creates a threshold for defamation claims and ensures that the legal system does not become overwhelmed by minor claims where no proper damage has occurred, particularly considering the abundance of potentially defamatory publications on the internet and social media.
The requirement of serious harm is the most difficult requirement to satisfy and is often where defamation claims fail. For information on what constitutes ‘serious harm’, see here.
If you think you have been defamed, may be defaming others, or have any questions regarding defamation law, please contact Mark Schneider, Eliza Buchanan or Georgina Buckley of our litigation and dispute resolution team.
