Defamation Claims – What You Need To Know

Did you know that between 2014 and 2018 Australia was dubbed the “World Defamation Capital”? Australia recorded at least 10 times as many claims as the United Kingdom on a per capita basis!

Author: Rachael Parr

15 September 2021

What is Defamation?

Defamation is the publication of material which can harm a person’s reputation.

Pursuant to the current defamation legislation, published material can include written material, photographs, or spoken words.

What Does the Plaintiff Need to Prove?

In order for a plaintiff to succeed in an action of defamation, the plaintiff must prove that the material published by the “perpetrator” contained one or more defamatory imputations.  An imputation is a negative claim or inference about a person or company, or their character.

An example of an imputation is “Joe Bloggs, the head chef at XYZ Restaurant, makes terrible food and is a lying cheat”.  In this instance, Joe Bloggs might allege that the material published about him contained imputations concerning his cooking ability and about his character, being that of a lying cheat.

What are the Defences to Defamation?

There are several defences that one can use in relation to a claim of defamation.

Most common defences that are used include the following: –

• That the defendant can prove what they published was substantially true;
• The defendant’s published material was an honest opinion rather than them making a statement of fact; and
• The defendant was innocently publishing the defamatory material. An instance where this may be a defence is where the defendant is an employee of a newsagency, library, or news outlet, for example.

What is the Time Limit for Bringing Defamation Proceedings?

The time limit for bringing an action in defamation varies from state to state in Australia.  In NSW, the limitation period for an action in defamation is 1 year following the publication of the defamatory material.  If a plaintiff fails to commence proceedings within the 1 year time frame, they will not be able to bring an action in defamation without leave from the Court.

It is possible that a Court may extend the time period up to 3 years after the publication of the defamatory material.  However, this may be difficult to achieve.  In these circumstances, the plaintiff must prove to the Court that it would have been unreasonable for them to sue the defendant during the first year after the defamatory material was published.  It is very rare for a Court to grant such an extension, and if you are considering commencing proceedings in defamation outside of the one year limitation period, we would recommend that you seek urgent legal advice.

Is Defamation a Criminal Offence? 

Defamation is not a criminal offence.  Defamation falls within the civil realm of legal proceedings.  However, there are legal remedies for a plaintiff if successful in a claim of defamation.

A person who is successfully sued by a plaintiff for defamation does not qualify for a penalty of imprisonment or criminal charges laid against them.  More often, a successful plaintiff in defamation proceedings will typically receive damages from the defendant (money), and additionally in many cases, the costs of the Court proceedings.

If I Successfully Sue Someone for Defamation, what Damages will I be Entitled to?

In defamation proceedings, damages are not fixed and will depend on the circumstances of the case.  This means that damages can range between small sums of money and millions of dollars.  In circumstances where the publication of defamatory material has caused significant harm to a person’s ability to earn an income, or has created personal hardship, it is likely that a larger award is made in the plaintiff’s favour.

Despite a plaintiff’s possibility of succeeding in their claim, commencing proceedings is something that each plaintiff must consider very carefully.  The costs of litigation are often very significant.  To assist in weeding out minor or vexatious claims, long awaited amendments to the Defamation Act 2005 were passed in New South Wales through the Upper House on 6 August 2020.  This was following a 2 year review of the previous National Defamation Laws.

The changes made to the legislation included introducing a new “serious harm threshold”.  This measure was taken to introduce a public interest defence as a means of protecting reasonable journalism.

As such, it is important that plaintiffs receive legal advice specific to their circumstances before considering commencing defamation proceedings.

What Next?

If you have any questions about defamation laws in New South Wales or you wish to have a discussion about a potential claim, please contact us on 02 4220-7100 or by email at lawyers@alg.com.au to arrange your free initial half-hour consultation.

Book Consultation