Defamation

For free and confidential legal advice about this topic, please contact us here.

The law of defamation is used to protect someone’s reputation. Defamation occurs where someone hurts the reputation of another by spreading false information about them.

What is defamation?

Defamation is when a person writes or says something untrue about someone else to other people and what they write or say is likely to make other people think less of that person.

To be defamation:

• the material must be defamatory. Material about someone is defamatory if it causes an average person to think less of them. Sometimes material may be damaging without being defamatory (e.g. if it is true).
• the material must be communicated to someone else. The material can be communicated by whatever means, such as talking to others, tweeting on Twitter posting on Facebook or printing in a newspaper;
• the material must be about a particular person or business. The material will be about someone if it names them or includes their face. If the material doesn’t name someone, it will be about them if people can reasonably figure out who it is about; and
• the material must have caused, or is likely to cause, serious harm to the reputation of the person the defamatory material is about.

What can I do if I think someone has defamed me?

If you think you have been defamed, it is important to remember that the defamatory material must cause the average person to think less of you. Material you personally find hurtful or material you personally disagree with will not necessarily be defamation – for example, if the material is substantially true or is unlikely to cause you serious harm.

If you think you have been defamed, there are a number of legal and non-legal pathways available to you:

1. Collect evidence

If the defamatory material has been posted online, it’s important to take screenshots so that you have evidence of it if you want to consider legal action.

2. Contact the person who defamed you directly

As as first step, you can ask the person who defamed you to take down the material. 

3. Report the defamatory material to social media platform

You can also report the defamatory material to social media and ask them to take down the material (e.g. if it was posted on Facebook or Twitter etc).

4. Send the person who defamed you a legal concerns notice

You can send the person who defamed you a legal notice asking them to take down the material and make a public correction.

5. Take legal action against the person in court

You can sue the person who defamed you (or anyone involved in defaming you) for defamation. If you have been defamed, you usually must sue within the time limit of 1 year from when the material was first communicated. 

Before you can sue someone, you must first send them a notice in writing which properly specifies where the defamatory material can be found (e.g. provides a link to a webpage for example) and identifies which parts of the material is defamatory, and informs the person of the serious harm that has been caused or is likely to be caused. You can only sue the person after 28 days of sending this notice, or if the person who you sent the notice to asks for more information, 14 days after you give that extra information to the person. 

It is important to know that legal action can be very expensive, complicated, and time consuming. There is no guarantee you would win. If you think you have been defamed, we strongly recommend you get legal advice about your options.

If you successfully sue someone for defamation, the court may award you money (as damages) to compensate you for damage to your reputation, your hurt feelings, and any economic loss you have suffered. The court may also stop the person who defamed you from publishing defamatory material about you in the future (which is called an injunction).

If you think that someone may have defamed you, you can contact us here for free and confidential legal advice.

What can I do if I think I have defamed someone?

If you think you have defamed someone, you can apologise to the person you defamed and take the material down. This might resolve the situation.

If you receive a concerns notice alleging that you have defamed someone, it’s important that you receive legal advice as soon as possible.

If you have defamed someone, you may be able to defend yourself from being sued in court. There are a number of ways to defend yourself, such as justification, public interest, honest opinion and privilege.

If you are worried that you may have defamed someone, you can contact us here for free and confidential legal advice.

Justification

Justification is where the defamatory material is substantially true. However, you shouldn’t say something is true when it isn’t, as that can lead to worse consequences.

Contextual Truth

If you publish something that contains a few defamatory statements but one or more of the statements are substantially true and the statements which are not substantially true don’t further harm the reputation of the person, then you might be protected from being sued for defamation.

Honest Opinion

The defence of honest opinion protects you if you are being sued over an opinion you honestly hold. You must show that your statement is genuinely an opinion (rather than a statement of fact), that your opinion is based on proper material (for example, something that is substantially true) and that it is about a matter of public interest (such as a review of a movie or a restaurant).

Scientific or academic peer review

If you publish something defamatory that relates to a scientific or academic issue in a scientific or academic journal that was peer reviewed, then you might also be protected from being sued for defamation.
Issue of public interest

You might have a defence if you can prove that the material you published concerns an issue of public interest, and you reasonably believed that publishing the material was in the public interest.

Innocent dissemination

If you share material about someone that you reasonably didn’t know was defamatory and you were not the first person or author of the defamatory material, then you may be protected from being sued for defamation.

Qualified privilege

If you tell someone something they have an interest in knowing about and act reasonably while doing so, you may be protected from being sued for defamation. One example of this situation is if you make a report about someone to the police. Even if it turns out your allegations were untrue, you may be protected from a defamation claim if you honestly believed what you were reporting to police or were honestly suspicious someone had committed a crime. However, you may not be protected if you repeat the allegations to other people – this could be considered unreasonable, because the only people who have an interest in investigating crime are the police.

Absolute privilege

Some communications are always privileged such as statements made in Parliament or in court proceedings. This means a defamation claim can’t be made (even if the statements are false).

Where to go for help?

If you are under 25 and you believe that you have been defamed, or if you have been accused of defamation, you contact us for free and confidential legal advice here.

If you are 25 or older, you can use this link here to find a private lawyer near you. 

If you need some general support, it’s a good idea to talk to someone you trust, like a friend, your parents or another trusted adult about what’s going on. 

If you would rather talk to someone you don’t know, you can call one of the following services for free and private counselling support.

• Kids Helpline 1800 55 1800 (available 24/7, for young people between 5 and 25)
• eHeadspace 1800 650 890 (available 9am to 1am, everyday, for young people between 12 and 25)