Free speech & defamation - is it a fine line?
Author : Tim Swaine
This is a guest blog by our Senior Consultant, Tim Swaine, he will describe for you the law of defamation.
Free speech & defamation - is it a fine line?
Reputation is vitally important to everybody and this is where the law of defamation is relevant. The law of defamation allows you to protect yourself from wrongful attacks on your reputation.
If someone complains they have been defamed they are referred to as the plaintiff, while the person accused of publishing defamatory matter is referred to as the defendant.
What is defamation?
A publication is defamatory if it conveys an imputation about a person that lowers that person’s reputation in the eyes of reasonable members of the community or causes them to ridicule, avoid or despise that person.
In order to prove that defamation has occurred, the matter complained about must:
be published to at least one person other than the plaintiff
identify the plaintiff in some way
convey a defamatory imputation about the plaintiff
Since the introduction of uniform defamation laws in 2005 the distinction between slander and libel has been abolished and the “publication” of defamatory matter of any kind is actionable.
Who can sue for defamation?
Any natural living person can sue for defamation. No action lies for defamation of the dead, however distressing it might be to relatives and friends.
Corporations can now no longer sue for defamation unless they are not-for-profit or employ fewer than ten full-time employees. However, corporations may still sue for the tort of injurious falsehood, where the burden of proof is greater.
Defences
In most defamation cases, the issue is not whether the plaintiff has been defamed but rather it is whether the defendant has a defence to the claim.
The four main defences to a defamation action are:
Truth or justification
Fair comment or honest opinion
Absolute privilege
Qualified privilege
It is a complete defence to a defamation action if the imputations are true. If every part of the material is substantially true, then the defendant has a defence of justification.
For fair comment, the comment must be fair and based on facts which the defendant can identify and prove to be true. For honest opinion, the opinion must be held honestly, be based on “proper material” that is substantially true or based on privileged material, and be on a matter of public interest. However, the fair comment defence can be defeated if the publisher is motivated by malice.
Statements made under parliamentary privilege are protected by "absolute privilege," which is a complete defence in law. The same defence applies to anything which is said during court proceedings.
The defence of “qualified privilege” provides protection in the event that you have a duty to say something. For example, a teacher may provide feedback about a student’s poor performance to his parents at a parent-teacher interview. However, if the same teacher repeated such statements to, say, a newspaper, there could give rise to a defamation action since the teacher has no duty to inform the newspaper about the student’s behaviour.
Defamation Lawsuits
Defamation actions are not to be taken lightly as they can be costly and time-consuming, whether you are the plaintiff or the defendant. It is advisable to seek legal advice immediately if you are concerned that you may have been defamed or in the event that you receive a concerns notice pursuant to the uniform defamation laws or you are sued for defamation.
What Should I Do Next?
Contact us if you would like further legal advice on potential defamation that you think might be pending against you or if you are concerned about someone making defamatory statements about you. Our lawyers at You Legal will be happy to assist you in whatever way we can.
* This blog is for general guidance only. Legal advice should be sought before taking action in relation to any specific issues.