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Defamation

Understanding the legal implications and remedies for publishing false and defamatory statements is what we do best.

What is Defamation?

Defamation is a civil cause of action commenced in court in respect of defamatory material published about the plaintiff/claimant to a third person(s). The test as to whether a publication is ‘defamatory’ has been described as a statement that tends to lower the plaintiff’s reputation in the estimation of right thinking members of society. What is considered defamatory is a complex issue but might include allegations of dishonesty, incompetence and immoral or illegal conduct. Generally, an ‘ordinary or natural’ meaning to the words complained of (or whatever form the publication takes) will be accessed by using the benchmark of what the reasonable and ordinary person would understand the publication to mean, when considered as a whole.

WHEN TO MAKE A CLAIM?

Generally, a claim for defamation must be commenced with one year from the date of publication of the defamatory statement.  In some jurisdictions in Australia, a concerns notice must be issued prior to the commencement of defamation proceedings and the publication will not be defamatory unless it has caused, or is likely to cause, serious harm to the person’s reputation.

 The requirement to prove serious harm is a complex issue.  Whether serious harm has been suffered must be determined by reference to actual facts, meaning the impact of the publication.  Courts have acknowledged that inferences of fact can be drawn from the circumstances and context of the publication, including matters such as the extent and nature of the readership or audience and the gravity of the allegation.

Again, in some jurisdictions there exists an additional test that applies to a body that trades for profit, namely a requirement to show that a statement has caused or is likely to cause serious financial loss.

Commencing court proceedings, especially defamation proceedings, is a serious decision and should only be made after consulting an experienced lawyer in this area. 

For further information, please contact us.