Defamation is the intentional publication of unfounded material that harms a person’s reputation.
Defamation law in Queensland is primarily governed by the Defamation Act 2005 (Qld). This legislation aims to balance the protection of individual reputations with the right to freedom of speech.
Under the Act only individuals, organisations that do not seek profit, and businesses with less than 10 people can make a defamation claim.
Defamation Claims
If you believe that yourself, or somebody that you know has been defamed and would like to take action against the person who published the material, then it would be important to consider the situation alongside the below four elements.
Noting that all four elements need to be evident for a successful defamation claim, the four elements are:
- Publication: The defamatory material must have been communicated to at least one person other than the subject.
- Defamatory Nature: The content must be such that it would likely cause an ordinary person to think less of the subject.
- Identification: The subject that was allegedly defamed must be identifiable within the material.
- Serious Harm: The publication must have caused, or be likely to cause, serious harm to the subject’s reputation.
Defences to Defamation
In situations where defamation is wrongly accused, the following defences are available under the Defamation Act 2005:
- Justification: Is a defence that may be employed when the material that was released, despite posing a threat to the reputation to the subject, was substantially true.
- Contextual Truth: Occurs when the released material is partially true and partially false, this defence may be used when the false material is no more harmful than the true material.
- Absolute Privilege: Is a defence that provides for the protection of material that is published in places like courts, tribunals and parliament.
- Qualified Privilege: When a publication was made to someone with a credible interest in receiving the information, and the publisher acted reasonably in releasing it. This defence can be recognised as a ‘greater good’ defence wherein the publisher released the information because there was a genuine need for the information to be known.
- Honest Opinion: The material is an expression of opinion on a matter of public interest based off material that is found to be substantially true.
- Innocent Dissemination: Occurs when the defamatory information is unwittingly distributed by a person, a common example of this defence would be when a person distributes material on behalf of somebody whilst at work.
- Either Party has Passed Away: If either the person that the defamatory material was made out against, or the publisher of the material, die then a claim for defamation cannot be made.
Before Defamation Proceedings go to Court
Prior to a defamation matter going to court, a concerns notice must be given to the person who released the material and amount of time that has lapsed since the publication was made must be considered.
- Concerns Notice: Before initiating court proceedings, the aggrieved party must issue a concerns notice to the publisher or the person that released the material. The concerns notice is required to detail the defamatory content and the harm that it caused. Once given to the publisher, they then have 28 days to respond. Within the 28 days, the publisher may request more information about the notice from the aggrieved party which, if they do, the aggrieved party will have 14 days to provide the information before the publisher is given another 14 days to respond.
- Offer to Make Amends: Once a concerns notice has been issued by the aggrieved party, the publisher of the material may elect to respond with an offer to make amends. To be considered a legitimate offer, it must outline how the publisher is going to genuinely attempt to correct the defamatory act. Should the aggrieved party not receive a response to their concerns notice, or they are not satisfied with the contents of the offer to make amends, then they may elect to commence court proceedings.
- Limitation Period: A defamation claim must be filed within one year from the date of the material being published.
Damages and Remedies
When considering the types of damages that are available to somebody who has been defamed, there are generally two:
- Economic Loss: Covers the loss of earnings that the defamed party may have suffered due to the publication.
- Non-Economic Loss: Is a compensation payment for the pain and suffering that a person may have experienced due to the publication. The defamation legislation does have a monetary limit on the amount that can be claim under non-economic loss.
- Mitigation: Actions such as issuing an apology or publishing a correction can lessen the damages payable by the publisher.
Criminal Defamation
It is important to note that in the most serious cases defamation may be considered a criminal offence.
Under the Criminal Code Act 1899 (Qld), publishing defamatory material with knowledge of its falsity, or without regard to its truth, that is intended to cause serious harm, constitutes a criminal offence punishable by up to three years’ imprisonment.
Conclusion
Given the complexities of defamation law, especially in the context of online publications and social media, it is crucial for individuals or entities involved in potential defamation matters to wholly understand these legal frameworks.
If you have been involved in a situation that relates to defamation you can give Miller Sockhill Lawyers a call on 07 5444 4750 to better know where you stand.