what constitutes as defamation?

What Constitutes

Defamation in Australia Presented By Owen Hodge Lawyers

Overview1. Introduction

2. What is defamation?

3. How do they get away with it?

4. Other remedies

5. Get the help from us

“Who steals my purse steals trash…. But he that filches from me

my good name… makes me poor indeed.” 

William Shakespeare, Othello

Is a reputation ever safe in the era of Twitter and Instagram or in what some might argue is the general coarsening of public discourse?

In Australia, individuals who have suffered damage to their business or personal reputation may have legal recourse under the law of defamation. But “defamation” in the legal sense is a narrower concept than its popular meaning. Furthermore, once a good name is “filched,” money damages may not be a sufficient way to address the harm done. This is an area of law that requires careful navigation.

Introduction

What is defamation?

Defamation is …. In order to be “defamatory,” a statement may be written, spoken or communicated by pictures or gesture. It may include the repetition (think re-tweeting) of a statement made by someone else.

It must, however, be

Untrue A statement of fact, or an honest opinion

Understandable as referring to a particular person or small group

Communicated to at least one other third party

Harmful or likely to be harmful to a person’s personal or business reputation.

Thus, a lot of careful legal parsing goes into determining whether any given statement, however brutish and harmful to reputation, is actually defamatory.

An online review of a restaurant that cites slow service or tough steaks, while financially damaging, would likely be understood as a statement of honest opinion, not fact. “Dr. X is a quack,” is a closer question that might depend on whether the complaint is malicious. “Dr. X is a felon,” is more likely to be actionable if untrue and communicated to a third party.

Defamation is ….

Even given these restrictions, one might reasonably wonder why certain public statements are not actionable as defamation.

“Banks steal your money” would likely fail the requirement that the statement be understood as referring to an individual or small group.

Other statements that malign large groups of people, especially on the basis of race, might be actionable as hate speech or under some other statute, even if not as defamation.

How do they get away with it?

How do they get away with it?

Australia’s defamation laws also create broad exceptions for statements made by MPs in parliament, statements made in court or in other public meetings and in the course of political debate.

An individual who believes he or she has been defamed must also commence legal action within a year of the date the statement was shared with a third party, or three years in some special circumstances.

The problem, of course, is that the damage done by “filching a good name” is rarely undone through a lawsuit. A civil action may, in fact, make the damage worse by directing public attention to the offending statement.

The law lays down some specific mechanism by which apologies can be demanded and retractions accepted without resort to the courts. These may be particularly effective when dealing with newspapers or broadcasting companies.

Other remedies

Get the help from us

If you feel that you have been a victim of defamation, the advice of an expert attorney, like those at Owen Hodge Lawyers may be invaluable in mitigating the damage and resolving a situation.

Please call us at 1800 780 770 at your earliest convenience to schedule a consultation.

1800 780 770