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Defamation
What is Defamation?
Defamation is the publication, declaration or broadcast of material that is capable of lowering a person in the estimation of others. There is no statutory definition of defamation - see s6 of the Defamation Act 2005 (NSW). Instead the law relies on the common law definition which has built up over the years.
The common law definition of defamation includes holding someone up to hatred, ridicule or contempt, or causing others to shun or avoid a person.
Defamatory material may be communicated by any means (eg newspaper, magazine, radio, television, books, public meetings, poster, cartoon, painting, letter, pamphlet, or e-mail) as long as the message is seen or heard by the subject of the defamatory comment and at least one other person, apart from the person making the statement.
What does a person alleging defamation need to prove?
To establish a case in defamation, the plaintiff must establish that the material in question:
1. has been communicated by one person to another,
2. identifies the plaintiff, and
3. defames the plaintiff.
Who can sue?
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Any living person, including people who may appear to have poor reputations.
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A small business (employing fewer than 10 people) may sue.
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Non-profit corporations, so long as the purpose of the corporation does not include obtaining financial gain for its members.
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Big corporations are restricted in suing for defamation, but that does not prevent executives of the big firms from suing as individuals. Note that corporations can sue in tort for injurious falsehood, or false and misleading conduct under the Trade Practices Act.
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Groups can sue: Multiple defendants can sue over the same article. For example, the infamous "Class We Failed" case against The Daily Telegraph saw 28 students from the 1996 Mt Druitt HSC class successfully sue the newspaper for defamation.
A person can sue for defamation even if they are not named: as long as there is enough information for the person to be identified - if only to friends - then that person has been adequately identified.
Defenses to Defamation
There are seven main defenses to defamation claims.
1. Truth
If you can show what you wrote is true, then the plaintiff's cause of action will fail. If the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complaints are substantially true, the defamation action is defensible.
2. Contextual Truth
You may have a defence of contextual truth if you prove:
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a. the material in question contained one or more other imputations which are substantially true, in addition to the other imputations nominated by the plaintiff, and
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b. the defamatory imputations do not further harm the reputation of the plaintiff.
For example, if you allege Mr X has been convicted of assault when in fact he was convicted of murder, Mr X will not be able to sue you for defamation as the publication of the wrong charge is hardly going to further harm his reputation.
3. Defence for publication of public documents
This defence relates to fair summary or extract of parliamentary material, court documents and council and other public-authority records that are available for inspection to the public. This defence will be defeated if the plaintiff proves the defamatory matter was not published honestly for the information of the public or the advancement of education (see section 28).
4. Defence of fair reporting of proceedings of public concern
This defence includes report of international tribunals, international conferences, "learned societies", sports or recreation or trade associations, AGMs of public companies or any public meting that has been called to discuss a topic of public interests. Again, this defence is defeated if the complainant proves that the defamatory material was not communicated for the information of the public or the advancement of education (section 29).
5. Defence of qualified privilege
It is a defence to the publication of defamatory material if the defence provides that:
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a. the recipient has an interest in having information on the subject,
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b. the matter is published to the recipient in the course of giving to the recipient information on that subject, and
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c. the conduct of the defence in publishing that matter is reasonable in the circumstances.
The Defamation Act sets out a detailed framework for the court to decide whether a publication was "reasonable" in the circumstances. Please consult the UNSW Legal Office for further guidance in relation to the application of this defence.
6. Defence of Honest Opinion
To achieve this defence you must show that:
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a. the matter was an expression of opinion of the University or controlled entity or the defendant’s employee (such as academic commentary or opinion) rather than a statement of fact;
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b. The opinion related to a matter of public interest, and
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c. The opinion is based on "proper material" ie material that is substantially true published with absolute or qualified privilege, or protected by the public-report defenses.
This defence is defeated if the plaintiff proves that the opinion was not honestly held by the defendant at the time the defamatory matter was published.
7. Defenses of innocent dissemination
It is a defence to the publication of defamatory matter if the defendant published the offending material merely in the capacity of a subordinate distributor (eg newsagent). Section 32 says the subordinate distributor cannot be:
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a. the first or primary distributor of the matter,
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b. the author or originator of the matter, or
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c. a person who had some capacity to exercise editorial control over the content of the matter.
8. Triviality
Section 33 of the Defamation Act holds that no action for defamation exists if you prove that the circumstances of publication were such that the plaintiff was unlikely to sustain harm.
Defamation Law is highly specialised. This Fact Sheet is a short background summary of the law and should not be relied upon as legal advice.
For legal advice in relation to defamation please contact the UNSW Legal Office on 9385 2701 or legaloffice@unsw.edu.au.