What is defamation?

Defamation occurs where one person communicates, by words, photographs, video, internet, illustrations or other means, material which has the effect or tendency of damaging the reputation of another.  You must demonstrate that the defamation:

• injures the reputation of the individual by exposing them to hatred, contempt or ridicule;

• cause people to shun or avoid the individual; or

• lower the individual’s estimation by right thinking members of society.

For a defamation action to be successful, three elements must be satisfied:

• the information was communicated by the defendant to a third person other than the plaintiff (publication);

• the material identifies the plaintiff (identification); and

• the information/material contains matter that is defamatory, regardless of whether the material was intentionally published or not (defamatory matter).

Provided that no defences are applicable, if the elements are satisfied then the defendant will be liable to pay damages to the plaintiff to compensate him or her for the damage caused to his or her reputation.

There is now no distinction between defamation communicated in writing and defamation communicated verbally.  Both are actionable.

What is the relevant legislation?

On 1 January 2006, uniform defamation legislation was enacted in all Australian States, based upon model provisions agreed to by the Standing Committee of Attorneys-General.  In Queensland, the Defamation Act 2005 (Qld) (2005 Act) repealed the Defamation Act 1899 (Qld) (1899 Act).

The 2005 Act now governs the law of defamation in Queensland.  The 2005 Act will apply to defamatory material published after 1 January 2006.  If the defamation occurred prior to 1 January 2006, the 1889 Act will apply.

Who can sue for defamation?

An individual living person can sue. A deceased person cannot sue.

Corporations employing ten or more persons do not have a cause of action unless the corporation is an excluded corporation (see section 9 of the 2005 Act)

An excluded corporation is one which:

• the objects for which it is formed do not include obtaining financial gains for its members or corporations, (ie not for profit organisations); or

• it employs fewer than ten persons and is not related to another corporation

Who can be sued for defamation?

Any natural person or legal entity including local governments, companies and incorporated associations may be liable for defamation.  Any person who contributed to the publication, including but not limited to the original author, the publisher, journalists, television and/or radio stations may also be held liable.

Time frame to bring an action

If the defamatory matter was published after 1 January 2006, then the action is governed by the 2005 Act and it must be brought within 1 year from the date of the publication of the matter complained of (section 10AA of the Limitation of Actions Act 1974).

This may be extended to 3 years if the court is satisfied that the action could not reasonably have been commenced within 1 year.

If the defamation occurred before 1 January 2006, then the action is governed by the 1889 Act and the action must be commenced within 6 years from the date on which the cause of action arose (i.e. when the defamatory matter was published).

Elements of civil defamation – Defamation Act 2005

The 2005 Act does not define the meaning of the elements of a defamation action.  Instead, they are defined by the common law, or the body of “judge-made” law that has been developed through cases decided by the courts.

Publication 

Publication means that the material is made known to a third person other than the person being defamed.  Publication can be oral, in writing or in pictures.

Publishing occurs in each place the material is seen or heard, thus every time defamatory information is repeated to a third person, a separate publication occurs.

Identification 

The plaintiff must be able to show that the defamatory matter could reasonably be taken to be about him or her.  It is a question of whether an ordinary reasonable person having knowledge of the relevant circumstances would read the material as referring to the plaintiff.

This is most easily satisfied when the publication actually names the plaintiff.  However, there is no need for the plaintiff to be expressly named.  It is enough that the publication is made to persons with knowledge of other facts which would reasonably enable them to identify the plaintiff.

Some case examples

Cassidy v Daily Mirror Newspapers Limited [1929] 2 KB 331.

In this case the newspaper published a photograph of the plaintiffs husband with another woman with a statement that the couple in the photograph were engaged to be married. The court held that the publication was referable to the plaintiff. People who saw the publication and knew the plaintiff also knew fact that she lived with the man who was photographed.

It was referable to the plaintiff because the imputation was that she was not married to him and was instead the man’s mistress.

Lee v Wilson (1934) 51 CLR 276

A newspaper published an article alleging that “Detective Lee” was guilty of misconduct as a police officer.

In the relevant police force there were two Detective Lees and there was also a Constable Lee. The article was actually intended to refer to Constable Lee.

Both of the Detective Lees were able to maintain defamation actions against the newspaper.

Defamatory matter

Whether a matter is defamatory will depend on the circumstances of each individual case.  It is necessary to consider:

• whether the material was capable of conveying the defamatory meaning alleged by the plaintiff to an ordinary person.  If this is answered positively, the next issue for determination is:

• whether, in fact, an ordinary person would have taken the publication as conveying the meaning alleged.

In answering these questions the standard to be applied is what the ordinary reader, listener or viewer would understand or infer from the statement.  The audience is taken not to have any special prejudices.  The actual intention of the person making the statement is irrelevant.

There are three ways that a statement can convey a defamatory meaning (otherwise known as an imputation):

• On the natural and ordinary meaning of the words: the meaning coming from a literal reading of the words

• The court may find that the statement is a false innuendo.  In other words, there is a secondary meaning which comes from reading between the lines

• The statement may be a true innuendo.  This is where the alleged meaning arises from the natural and ordinary meaning of the words being read in light of other facts not mentioned in the publication.  The statement must be published to at least one person who knows of other facts.

The defamatory meaning can be directly stated or it can be implied.  An implication that arises from another implication is not actionable.  This is important in the context of criminal allegations.  A statement that somebody is charged with a crime carries the implication that the person is suspected of committing that crime; to conclude that this means the person did in fact commit the crime requires a second implication, and would not be actionable.

It is possible that a single statement may convey several defamatory meanings.  However, multiple imputations in the same publication will only give rise to one cause of action.  This means that a plaintiff cannot take several actions against a defendant in relation to a single publication.

How can Boss Lawyers help me?

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