26/02/2017, 05:52:PM
26/02/2017, 05:52:PM
Defamation is a common allegation raised when a person’s credibility and reputation is under attack. Defamation is when one person communicates to a third person, usually by words, any matter which adversely affects the reputation of the person that was defamed. The essence of raising a claim for defamation is the protection of one’s reputation. There are two aspects of defamation, libel, which means written statements, and slander, which is oral statements. When a claim is raised for defamation, there is no distinction between libel and slander as they are one action. There are three elements of a defamation action: (1) the subject matter was defamatory; (2) the defamatory material or statement identifies the plaintiff; (3) the defamatory material or statement was published to another person than the plaintiff. The very nature of defamation is personal and because of this fact, a dead person cannot be defamed. However, if a deceased person is defamed and it carries a negative imputation on a living person, a defamation claim may be raised by the person that is alive.
A corporation is able to sue for defamation, but it may only raise a claim if the company has fewer than 10 employees or functions as a not-for-profit organisation and is not a public body.
The law that regulates defamation in Victoria is the Defamation Act 2005, which the same Act title applies for New South Wales.
Defamation is a complex area of law and generally, the heart of a defamation claim is usually brought on the basis of the protection of one’s privacy. A defamatory statement need not impute any moral blame to the plaintiff, it is sufficient if the plaintiff has been dishonoured by the statement. In the following cases the claim of defamation was held: Ansley v Penn (HC(NZ) 28 August 1998 the court held that where person was called a psychiatric patient, when they were not, was defamation; or in Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) where the defendant claimed that she was raped, when she was not, was defamation; or in Krahe v TCN Channel Nine Pty Ltd (1986) where a person claimed that another party’s wife committed adultery, when it was not true, was defamation. Defamation has a broad area and does catch matters such as caricatures, cartoons, photographs, anything that will substantially ridicule or discredit a person.
Whatever statement that is claimed as libellous it must be considered in view of public policy, which is the prevailing community standards at the time. Whether statements made by a party are to be found as defamatory depends on their context and to the audience who were the recipient of the statements. The claim will also depend on the time and place of the statement, such as statements made after a dinner party, may not be defamatory; however, if the same statement is published on the radio or newspaper it may be defamatory. Further examples of potential claims of defamation is calling a person a hypocrite, drunkard, communist, drug user, jew-hater, terrorist and so on, the list of potential claims is not restricted. The allegation of defamation will be specific to the facts of the matter.
Where a statement is made defamatory imputations must be identified, and the context of the statement will be held as defamatory where reasonable people, right minded of fair average intelligence, can identify the accusation as conveying defamatory meaning. In Radio 2UE Sydney Pty Ltd v Chesterton (2009) the court held the general test for determining whether accusations are defamatory will depend on whether the esteem in which that defamed person is held by the community is diminished in some respect. As example, discrediting a person in their profession such as a doctor, architect, solicitor, businessman, elected representative, or if the community shuns or ridicules them. The circumstance in which defamation may apply is wide.
Some examples of defamation include: John Fairfax Publications Pty Ltd v Gacic (2007) where the court held that a statement made that an owner of a restaurant sells unpalatable food and provides bad services was libellous; or in Shepheard v Whitaker (1875) where the court held that saying that the trader was bankrupt or insolvent when they were not was defamatory, as the accusation claims lack of business acumen by the trader; or in Bjelke Peterson v Warburton [1987] where various Ministers of the Queensland government sued the opposition leader as he stated that the Ministers had their hands in the till, which the court held the statement by the opposition leader created the innuendo that the Ministers were corrupt, which was false, and the claim of defamation was held.
Where a defamatory statement is made the plaintiff must be able to be identified, which may be directly or by innuendo. In Bateman v Shepherd [1997] the defendant was held liable for defamation even where the plaintiff was not named, because there were sufficient facts to enable a number of people to realise the plaintiff was the party being referred to in the statement.
A claim of defamation requires that the matter is communicated to persons other than the plaintiff, and it is irrelevant that the person to whom the statement was published believed it to be false. It does not matter that the defendant did not intend to defame the plaintiff, provided that the publication was intentional, or a natural consequence of their action. Everyone who takes party in the dissemination of defamatory matter is liable. However, the secondary distributor, may be able to claim the defence of the innocent disseminator. Where an internet service provider facilitates the posting they are generally free of liability. Others who are protected include booksellers, news agents, libraries, and a delivery person.
In determining whether a statement whether verbal, written, or pictorial is defamatory there are numerous factors that need to be taken into account. The important concept to remember is that the object of raising a claim of defamation is the protection of reputation, and reputation exists in the minds of others. So when your credibility and reputation is being tested, get that legal advice to protect your legal rights and interests.
The comments in the aforementioned do not constitute legal advice and are general in nature, and if legal advice is required please contact: John Melis at Legal AU Pty Ltd (03) 9999 7799 www.legalau.com
Legal AU Pty Ltd Lawyers are “Liability limited by a Scheme approved under Professional Standards Legislation.”
