Traditionally, defamation suits have been brought against magazines or media outlets that publish or broadcast false information. You may be familiar with a recent case involving actress Rebel Wilson against Bauer Media. In September of 2017, the Supreme Court of Victoria awarded Wilson damages of $4.56 million over articles that claimed the actress had lied about her age, her upbringing in Sydney, and the origins of her first name. (Wilson asserted that the articles had harmed her chances at getting Hollywood roles.) Similarly, in October 2017, Jamaican cricketer Chris Gayle won a large settlement against Australia’s Fairfax Media regarding a series of articles that falsely reported that he had exposed himself to a masseuse during the 2015 World Cup. In today’s world, the internet also provides a veritable minefield of possibilities for defamation.

What is Defamation?

The Law Handbook 2017 defines it as, "A person whose reputation has been attacked can sue for defamation if damaging material that identifies them was published. Words are judged in context, either by the standards of a reasonable person giving words their ordinary meaning or with a special meaning understood only by people ‘in the know.’”

Words are considered to be defamatory if it is understood that they will result in a lowering of the person’s reputation amongst reasonable people, or that result in the person being ridiculed, avoided, or despised by members of the community. The context of the words is central to the case.

How can you be Defamed?

Defamation can occur verbally by someone saying something untrue about a person to another person, by a person writing something such as a Facebook post or some other social media post or writing about someone in an editorial or article.  While it’s important we have freedom of speech so we can discuss issues and exercise our democratic rights, this needs to be balanced by not saying untrue things about people.  Defamation can cause damage to a person’s reputation which may affect their work life, social life, career, prospects of employment and health.

Defamation Law in Australia

Defamation law deals with protecting reputations. In Australia, the law gives a person whose reputation has been wrongfully attacked the right to take legal action against those responsible.

You may take legal action if:

•          Material was "published” (this includes being written, spoken or illustrated, or being posted on the internet) to at least one other person
•         The material identified you, directly or indirectly
•         The material was "defamatory”

How will the court decide if the material is defamatory? In order to do this, the court takes the viewpoint of a hypothetical "ordinary reasonable person.” It will consider the question from the point of view of a person who is "of average intelligence, who is neither perverse, morbid or suspicious of mind, nor avid for scandal, but who is also not unusually naïve, who engages in a degree of loose thinking, and who can and does read between the lines.” (Law Handbook 2017). Words can be considered defamatory based on their ordinary meaning – i.e., the meaning that an ordinary reader would take from them -- or based on special meaning or "true innuendo.” In the second case, it must be proved that the words were published to at least one person who had enough information about relevant facts to understand the innuendo.

Defamation with a Global Audience

Defamation law exists to protect the reputation of one person while protecting the idea of free speech for another. The rise in popularity and usage of social media is having an impact on defamation cases. Words published on sites like Facebook and Twitter are, in some cases, ending careers for fellow actors and journalists. The Internet is a wonderful tool to communicate on a global scale and share news and human-interest stories without borders. The wrong information shared will not only impact a person’s reputation at home, but far across the World Wide Web. The Australian courts have awarded defamation cases over the past five years to people who have fell victim to social media speculation and resulted in tarnished reputations in the community. "Going viral” can have a tremendous impact on your image in the neighbourhood, if not the world. One victim was publicly branded as a pedophile on social media, when he had never been charged criminally with such a crime. The community backlash was unfounded and unrelenting.

Australian defamation laws are fairly uniform across all six states and have been amended since 2005. These amendments prevent corporations from suing for defamation, which addressed concerns at the time that large companies could squash a legitimate complaint pertaining to company business at the threat of a defamation lawsuit. The new amendments also put the decision of punitive damages in a civil case in the hands of the judge instead of the jury to protect the integrity of the award. 

If you feel that your reputation has been damaged by an organization or individual, it’s important to consult a lawyer who can advise you about your possibility of securing damages. Call a defamation lawyer today and know your rights!