Defamation and Protecting Reputation

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The risks of losing The first and most obvious question most clients will ask is ‘what are the risks of losing?’ There are two answers to this question depending upon whether the case settles or goes to trial.

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Defamation is a personal attack which has the effect of diminishing a person’s reputation in the eyes of ordinary reasonable people in the community, or leads people to ridicule, avoid or despise the person. Such an attack can be via spoken words or in writing, or in art, photography, film, video, ...

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There is no defamation unless the attack is published to a third party. If one writes the person a letter or sends them an email, they should include the words private and confidential at the beginning of the text in case a third party receives it accidentally which happens quite frequently online. ...

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Anyone intending to publish material that might be defamatory could consider making pre-publication inquiries of the person likely to be offended by the contentious material. A letter, email or other form of communication prior to publication should clearly state that its purpose is to address the ...

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Before commencing proceedings, the plaintiff may wish to obtain further information about the publication or further details of the defendant. This is called preliminary discovery or pre-litigation disclosure. The general rule for preliminary discovery is that the plaintiff is not required to ...

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Some solicitors will write to a prospective defendant and say they have instructions to sue for the jurisdictional limit in the relevant court. While this might shock the prospective defendant into a quick settlement, it might also establish an unrealistic expectation on the part of the solicitor’s ...

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Rule 1: Mere vulgar abuse is not defamatory Defamation claims over offensive but innocuous remarks are serious threats to the credibility of the justice system, especially in cases where a plaintiff has suffered no real harm. Judges are likely to take a more expansive view of free speech by ...

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If the client has been defamed and intends suing for damages, begin the claim with a letter of demand or concerns notice, which may include a request for an apology and damages. It is common for even an experienced defamation solicitor to prepare a letter of demand and have counsel settle it, ...

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As a general rule in civil law apologies and expressions of regret can imply an admission of fault or responsibility. But that said, all States and Territories now provide statutory protection in varying degrees when a person apologises or expresses regret. The rule of thumb is that apologies and ...

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See 101 Costs Answers for more information on costs disclosure generally. In litigation matters, the lawyer’s disclosure obligation extends to giving the client a reasonable estimate of the costs that will be payable if the matter is settled, including any costs of another party that are likely to ...

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Publishing material that constitutes an attack on a person’s fundamental self-worth may be so gross as to amount to a breach of their privacy. The harm done by publicly broadcasting explicit sexual material without the permission of the person depicted in the material has long been regarded as so ...

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The equitable doctrine of breach of confidence has traditionally provided redress for the unauthorised use or disclosure of trade secrets, or commercial-in-confidence material. There are cases in Britain going back 150 years where the doctrine has been applied to confidential information of a ...

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Where a business or professional client wants to stop a previous customer or former client behaving badly, for example, by publishing defamatory material on the internet it is possible to apply for an injunction provided an undertaking is given to the court to file defamation or other proceedings ...

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Another good alternative to defamation proceedings is the misleading or deceptive conduct action under s 18 of the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth). The usual applicant will be a corporation excluded from defamation proceedings by the ...

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Malicious or injurious falsehood is a tort that provides a remedy where the defendant maliciously publishes false material causing special damage to the plaintiff, or to the plaintiff’s property or business. This action is frequently prosecuted in conjunction with a claim for misleading or ...

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In various ways, and with different degrees of success, the Commonwealth, states, and territories have attempted to protect people from vilification or hate speech based on their race, sex, sexual orientation, disability, and age. These laws are designed to protect the group and its standing in the ...

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The vast majority of print media organisations in Australia are members of the Australian Press Council, a self-regulatory body with responsibility for dealing with complaints about Australian newspapers, magazines and associated digital outlets. Although the Council is funded mostly by the major ...

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The task of regulating radio and television broadcasts falls to the Australian Communications and Media Authority (ACMA), a statutory body established under the Broadcasting Services Act 1992 (Cth). All broadcast media is covered by the legislation except the national broadcasters ABC and SBS, ...

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As the name suggests, criminal defamation requires an element of criminality that is not found in the tort of defamation, although mens rea is not required at common law as the offence depends on the effect of the words, not the intention of the person accused of the crime. Criminal defamation at ...

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From the commencement of the uniform law on 1 January 2006 the time limitation for bringing an action for defamation is generally one year from the date of publication. Following the 2021 amendments, the limitation period may be extended in certain circumstances – see above. Prior to the ...

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The first question is whether the defamatory material was published in one of the eight jurisdictions in which the uniform defamation law operates. If the defamatory material is published to one person other than the person defamed in any Australian State or Territory, then that constitutes a cause ...

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The distinction between written and spoken defamation was abolished by the uniform defamation law, but the form in which the defamatory words are published is important in the context of preparing the Statement of Claim. A transcript of the defamatory material must be attached to the Statement of ...

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Whether the words in the published material or matter complained of carry defamatory imputations depends on the answer to three questions:

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It would be unusual for the Statement of Claim not to have the benefit of a second opinion before it is filed. Even the solicitor experts in defamation will run their pleadings by counsel in the expectation that there will be some aspect of the case that needs further attention. The approach taken ...

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File and serve the Statement of Claim in accordance with the rules of the applicable court. In the case of a corporate defendant, it is wise to serve documents on both the registered office and the place of business, especially where the company operates from separate premises to the registered ...

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Be aware of and ensure compliance with the requirements of relevant practice notes for the applicable court. Before the return date have a discussion with the other side to work out an agreed timetable which can be handed up. See the Example Content – Short Minutes of Order – Timetable on the ...

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In criminal trials, it is often said it is better to have a judge and jury to hear the case if the client is likely to be guilty, but a judge sitting alone without a jury if the client appears to be innocent. This is based on the assumptions that juries are less suspicious than a judge about the ...

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The first thing to advise the defendant is the costs involved in the various stages of the proposed litigation. The second thing is the nature of the defences available both at common law and under the uniform defamation legislation, and whether any of those defences apply to the case.

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As a general rule, plaintiffs will commence proceedings as a last resort when every attempt to settle their dispute with the defendant has failed. In most cases the defendant can assume that the plaintiff is a reluctant litigant, mortified by the publication and desperate to restore their damaged ...

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A Notice of Appearance will need to be filed or handed to the Registrar or the List Judge. Ensure compliance with the relevant rules of court.

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Questions of the plaintiff in defamation proceedings revolve around whether the published words carry the defamatory meanings alleged by the plaintiff and whether the damages claimed can be justified. The question of further and better particulars should be canvassed with the plaintiff’s solicitor ...

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A strike out application by the defendant will be appropriate if the plaintiff fails to reply to the request for further and better particulars, or otherwise fails to address the defendant’s concerns about the Statement of Claim. The fundamental principle is that the defendant is entitled to know ...

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In criminal trials, it is often said it is better to have a judge and jury to hear the case if the client is likely to be guilty, but a judge sitting alone without a jury if the client appears to be innocent. This is based on the assumptions that juries are less suspicious than a judge about the ...

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The imputations are true in substance Truth alone has been a defence to defamation claims since s 25 of the uniform defamation law came into force in 2006. Between 1847 and 2006, as well as proving the truth of defamatory remarks, a defendant had to prove that the remarks were made in the ...

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All common law defences with the exception of truth and absolute privilege are defeated by malice. Only purveyors of the truth, politicians, lawyers, litigants, and witnesses in parliamentary or judicial proceedings can defame a person with impunity. But proving the existence of malice is not ...

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The plaintiff may object to a glaring error or omission in the defence and request the defence be amended. Assuming the amendment is agreed, including as to the resultant costs issues, the parties can agree on a timetable to take the case through to the point where it is ready to be set down for ...

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The plaintiff is entitled to know the detail of the Defence to be relied on at trial by the defendant. Vague or general assertions in answer to the Statement of Claim are not acceptable and should be the subject of a request for further and better particulars. Both parties have an obligation to ...

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The plaintiff must answer the defences pleaded by the defendant in a formal Reply. If the plaintiff does not take issue with any of the defences, then the plaintiff will be deemed to concede those defences. Where there are admissions in the Defence, they should be acknowledged generally by the ...

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Sometimes a plaintiff will attempt to insert into the proceedings new or fresh assertions in the Reply, either as a pleading or in the particulars. For example, a plaintiff may include in particulars of malice the following:

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An application to the court to strike out an opponent’s pleadings or particulars can be made at any time after reasonable notice to withdraw the offending material. Most commonly the application relates to the form and capacity of the plaintiff’s imputations, failure to disclose a reasonable cause ...

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A defendant who is partly successful in having the Reply struck out is entitled to ask the plaintiff to file an Amended Reply. Where there is no strike out application, the defendant will deal with any concerns about the Reply in a response, or Answer. The document is similar in form and content to ...

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Disclosure or discovery of documents and answering of interrogatories are dealt with in the applicable court rules covering civil litigation. In the absence of agreement between the parties, discovery can only proceed pursuant to an order of the court. When making an order for discovery, the court ...

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Requests Interrogatories are specific questions addressed to the opposing party prior to trial. They are part of the discovery process, and, like discovery, they must relate to issues in the proceedings.

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The plaintiff must prove on the balance of probabilities that the matter complained of had a defamatory meaning, that it was communicated or published to a third party and that it was published of and concerning the plaintiff. In a case involving special damages, the plaintiff must also produce ...

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The defendant’s case will focus on deficiencies in the plaintiff’s case unless truth is pleaded by the defendant. Once the defendant says that the defamatory meanings pleaded by the plaintiff are true, the onus of proving this assertion according to the civil standard of the balance of ...

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At the closing stages of a defamation trial the judge will ask the parties for written submissions summarising the case and arguing in support of findings in favour of their clients. Diligent parties and their lawyers have been working on the final submissions since the opening day of the trial, ...

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Written submissions on behalf of the defendant at the end of a defamation trial are similar to the plaintiff’s final submissions, except they argue the case for a verdict in favour of the defendant. Generally speaking, the parties will exchange submissions before handing them to the judge, and the ...

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The uniform defamation law provides that any award for damages in a defamation trial is to be decided by the judge and not the jury. This includes the amount of damages and any unresolved issues of fact that might have any bearing on the determination of the figure. The harm caused by the ...

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Interest will be added to a verdict in the normal course and the amount will reflect commercial rates. In periods of high inflation, the rate will be higher, although a party ordered to pay damages and interest may argue that any period of delay attributable to the successful party should be ...

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See 101 Costs Answers for more information on costs disclosure generally. In litigation matters, the lawyer’s disclosure obligation extends to giving the client a reasonable estimate of the costs that will be payable if the matter is settled, including any costs of another party that are likely to ...

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In awarding costs, the court may have regard to the way the parties to proceedings conducted their cases and any other matters that the court considers relevant. Costs are awarded on an indemnity basis if the court is satisfied that the defendant unreasonably failed to make a settlement offer, or ...

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