Defamation law protects people from publications that damage their reputation. In Australia it is governed largely by uniform state and territory legislation, which in New South Wales is the Defamation Act 2005 (NSW).
What is defamatory?
A publication is defamatory if it conveys a meaning, known as an imputation, that would tend to lower a person in the estimation of ordinary reasonable members of the community, or cause them to be shunned, avoided, ridiculed or despised. The imputation can be stated plainly or arise by implication.
A claim requires three things: the material was published to at least one person other than the person defamed, it identifies the person, and it conveys a defamatory imputation.
The serious harm requirement
Since 1 July 2021, a claimant must also prove that the publication has caused, or is likely to cause, serious harm to their reputation. For a corporation entitled to sue, it must show serious financial loss. This threshold is decided by the judge and is intended to filter out trivial claims.
Who can sue?
Individuals can sue. Most corporations cannot, unless they are not-for-profit or have fewer than 10 employees and are not related to another corporation.
Common defences
- Justification. The imputations are substantially true.
- Contextual truth. Other substantially true imputations in the same material mean the defamatory ones do no further harm.
- Honest opinion. The material was an opinion on a matter of public interest, based on proper material.
- Public interest. The publication concerned an issue of public interest and the publisher reasonably believed publishing it was in the public interest.
- Qualified privilege. The recipient had an interest in receiving the information and the publisher acted reasonably.
- Absolute privilege, fair reports and innocent dissemination also apply in specific circumstances.
Remedies
Damages compensate for harm to reputation and hurt feelings, and can include economic loss. Damages for non-economic loss are subject to a statutory cap that is adjusted each year, and aggravated damages may be awarded separately in some cases. Courts can also grant injunctions to stop further publication.
This article is general information only and is not legal advice. The law may have changed since publication. Contact us for advice on your circumstances.