The Law of Defamation
The law of defamation is concerned with the harm done to a person’s reputation
after material has been published, orally or in writing, in any forum (including social media), where the material published is untrue or substantially untrue.
In some states and territories in Australia, there is a requirement that the harm
sustained, or likely to be sustained to a plaintiff’s reputation, is serious.
To succeed in a defamation claim, the following requirements are mandatory:
- material has been published (either orally or in writing) to at least ONE other party, and
- the complainant has been identified, either directly or indirectly, in the published material, and
- an ordinary person would regard the publication of the material as defamatory, and
- the publication has caused, or is likely to cause, serious harm to a complainant’s reputation (effective 1 July 2021).
Case Study: The cost of a Facebook Post
A Sydney man was awarded $35,000 in damages for a single defamatory Facebook post that claimed that he intimidated, bullied, and threatened women. It was also alleged that he found people’s addresses and hand delivered mail to their homes. The court found the defendant’s posts were defamatory, and that the man’s reputation had been damaged.
While the audience of the post was relatively small, the court awarded slight aggravated damages for subsequent defamatory posts, thereby increasing the amount of damages awarded to the man.
It is important to be cautious when using social media platforms, and to seek legal advice promptly if an issue of defamation arises.
Eligibility for a defamation claim.
Who can sue for defamation claim?
Individuals, non-profit organisations and corporations employing less than ten people have a legal right to sue for defamation.
Who cannot sue for defamation?
Section 9 of the Defamation Act 2005 excludes the following people or entities from bringing a claim for defamation.
- any corporation (that has not been excluded – see below) where defamatory matter has been published about that corporation. However, an individual within a corporation or government body can sue if a publication specifically criticises the way in which a person undertakes their duties or public functions.
- a person seeking to represent a deceased person.
An excluded corporation that CAN bring a defamation claim refers to:
- a non-profit organisation that is not an entity of another corporation OR
- a corporation with less than ten employees AND
- the corporation is not a public body (ie. government entity.)
Who can be sued?
Any large corporation, government entity or individual that has made a defamatory statement can be sued.
Time Limit for a defamation claim.
In NSW, the limitation period is ONE year from the date that the defamatory material was published. (See Limitation Act 1969).
However, the court can make exceptions for the limitation period under reasonable circumstances.
Defending a defamation claim
An accusation of defamation can be extremely intimidating, especially when a ‘notice of concern’ has been issued by a Solicitor, outlining the elements of the offence.
Defences to defamation exist to facilitate free speech, as the law recognises that it is sometimes in the public interest to publish certain material.
The statutory defences are provided below:
Truth is a complete defence to an allegation of defamation. If a defendant (the ‘defamer’) proves, on the balance of probabilities, that defamatory imputations are substantially true, then a defendant will not be liable for defamation.
A plaintiff (the person defamed) is not required to prove that defamatory imputations are false.
Contextual truth refers to one or more of the alleged defamatory imputations containing substantial truth, whilst the remainder are false; and do no further harm to the plaintiff.
For example, if the media reports that a football player has behaved aggressively in their last three matches, but the player received a Player Red Card in two of three matches, and a Player Yellow Card in another, then the defence of contextual truth may apply. When the publication is considered as a whole, there is substantial truth that the player has behaved aggressively. However, no further harm could be sustained to the reputation of the player by erroneously alleging that all three matches were played aggressively.
Where public policy is prioritised as having greater importance than privacy, immunity from defamation may be granted. Examples of where absolute privilege applies are within parliamentary proceedings, and the proceedings of an Australian court or tribunal. Other situations may also apply.
The onus of proof rests on the defendant to prove that defamatory material had absolute privilege.
Publication of public documents
A public document is not defamatory if it is a fair copy, fair summary or fair extract of the original document.
Section 28 of the Defamation Act 2005 defines a public document as ‘a report or other document under the law of a country’ that meets the formal requirements of a public document. Specific examples include, but are not limited to court judgments, public records, deeds etc.
The onus of proof rests upon the defendant when using this as a defence.
Fair report of proceedings of public concern
This is a similar defence to the publication of public documents in that the publication of defamatory material may be a fair copy, fair summary or fair extract of a report. However, the difference is that the matter may be found in any proceeding of public concern, and not just a public document. This is because there may be a public interest in having this information.
Section 29(4) of the Defamation Act 2005 (“The Act”) defines ‘proceeding of public concern’ broadly. It includes, but is not limited to:
- public proceedings of a national or international parliamentary body or conference; or
- public proceedings of any court or tribunal of any country including the International Court of Justice; or
- public inquiries under the law or authority of any country or government; or
- certain types of proceedings of learned societies, or sport and recreation, or trade associations; or
- proceedings of a public shareholder’s meeting of a public company under the Corporations Act 2001; or
- any public meeting of public interest such as advocating for a person to hold a public office; or
- proceedings relating to an Ombudsman report of any country; or
- other public proceedings as defined by the Act.
A defence exists where the matter is shown to be contained in an earlier published report of any proceedings of public concern. Here a defendant must be able to demonstrate no prior knowledge or reasonable awareness that the earlier published report was unfair.
A plaintiff may defeat this defence if it can be proven that the defamatory matter was not published honestly for the advancement of education.
Publication of matter concerning issue of public interest
This defence is intended to protect freedom of expression in matters that are of public interest. A defendant bears the onus to prove that the published material relates to an issue of public interest; and that a reasonable belief was held that the matter was in the public interest.
A court will consider all of the circumstances of the case to determine whether a defence can be established. Factors that a court may take into consideration include, but are not limited to:
- the seriousness of an imputation alleged to be defamatory,
- distinctions made between suspicions, allegations, and proven facts,
- commentary on the public performance or activities of the person allegedly defamed,
- whether circumstances warrant the expeditious publication of the matter,
- sources of the information. If confidential, whether confidentiality is appropriate,
- whether the information is balanced, containing both sides,
- whether any other steps taken to confirm the accuracy of the information published, and / or
- freedom of expression versus the public interest.
Qualified privilege (certain information)
Qualified privilege facilitates the communication of certain information without a risk of being sued for defamation. It occurs in situations where a publisher (EG. an employer providing a reference) has an obligation to communicate information, and a recipient has a corresponding interest in receiving it.
A defence of qualified privilege can be defeated if a plaintiff can prove that the defamatory statement was malicious, and therefore unreasonable in the circumstances because it did not constitute ‘honest communication’.
Scientific or academic peer review
Publications engaging in academic or scientific peer review are protected from defamation suits providing that certain publication requirements are met. Protection is granted to ensure that industry standards are maintained or exceeded.
A defendant must show that the defamatory matter, published in a scientific or academic journal, relates to a scientific or academic issue where an independent review takes place. The independent review must be carried out before the matter was published, either the journal’s editor if the editor has expertise in the issue reviewed) or at least one person who has such expertise.
A plaintiff may defeat this defence by proving that the assessment was defamatory because it was not published honestly for the advancement of education.
Publishers are permitted to express an honest opinion on a matter of public interest, providing that the opinion has been based on proper material, and has not presented as a statement of fact.
A plaintiff must show that a publisher’s opinion could not have been honestly held on the material available, and was presented as a statement of fact rather than an opinion; whilst a defendant must show the contrary.
“…It must be accepted that a defence for … honest opinion can only be available in respect of expression of opinion.” (Mackie v John Fairfax & Sons Ltd  1 NSWR 641.)
This defence exists to protect entities such as librarians, booksellers, internet service providers, retailers and newsagents from being sued for facilitating the provision of defamatory material. In law, these entities are classified as agents or employees of subordinate distributors (not a first distributor) of defamatory material.
A defendant must prove that they had no knowledge that the publication was defamatory, and were not negligent in failing to have that knowledge.
Remedies in defamation law are governed by the principle of bearing ‘a rational relationship to harm’ suffered. (see s 34 of the Defamation Act 2005). Harm suffered generally falls into two categories: economic and non-economic.
An injunction may also be an appropriate remedy.
This remedy may be granted to compensate for a loss of employment or other financial losses, including business. Damages are not limited to a specific amount but are proportionate to the loss suffered.
This remedy is awarded to ameliorate feelings of distress, hurt and suffering. The maximum amount that can be claimed is limited to $250,000.
Aggravated damages – This remedy may be claimed where the defendant’s conduct is reprehensible. This may amount to a refusal to apologise or to make a retraction of the defamatory material. A failure to check the truth before publishing may also constitute reprehensible conduct. The extent of exposure and the mode used to disseminate the information may also be considered.
A plaintiff will not be awarded aggravated damages where it can be shown that the defendant sought to mitigate the damage done to the plaintiff.
Aggravated damages may be claimed as a separate head of damages that may exceed the $250,000 cap on damages for non-economic loss.
An injunction is a remedy that courts apply to prevent defamatory material from being published or to cease the continued publication of defamatory material.
Exemplary or punitive damages are not available in a defamation suit. However, a successful plaintiff may make an application for an award of costs, in bringing a claim to court.
Alternative Dispute Resolution
It is important to note that court is not the only path to resolving a defamation dispute. Once a concerns notice has been issued to a publisher of defamatory material, the publisher has 28 days to respond to make amends.
Section 15 of the Defamation Act (2005) lists the mandatory requirements of an offer to make amends.
How we can help
We can assist you in:
- reviewing the material alleged to be defamatory,
- preparing a concern notice on behalf of a plaintiff,
- responding to a concern notice on behalf of a defendant,
- settlement negotiation, and
- representation in court.
Let us help. Get in Touch.
Appointments can be conducted via:
- phone or
- face-to-face at our office.
Level 45, 680 George Street,
SYDNEY NSW 2000.
P: (02) 9145 1262 or 0407 122 230
By appointment only