defamation

Question 1

what is defamation ?

Answer 1

a tort that protects people’s reputations from being unfairly harmed

Question 2

what are the rights protected by the law

Answer 2

• the right to be considered of good character and reputation
• have your reputation protected
• freedom of expression – with limits
• seek a remedy if your reputation is unfairly harmed.

Question 3

what are the elements required to establish liability

Answer 3

• the statement is defamatory
  —- the statement must harm a person’s reputation and expose them to ridcule, contempt or hatred
• the statement is untrue
• the statement refers to the plaintiff
• the defendent published the statement
  —- the statement must have been communicated to at least one other person, verbally or written and includes all online communications.
• limitations of actions - 1 year

Question 4

what is the limitation of actions for defamation?

Answer 4

the action must be brought within one year of the date the statement was published. courts can extend this up to three years in limited circumstances
—The limitation period can only be extended
if the court is satisfied that it was not reasonable for the plaintiff to have commenced an action within one year from the date of publication.

Question 5

what are the possible defences?

Answer 5

• justification
• contextual truth
• absolute privilege
• publication of public documents
• fair report of proceedings of public concern
• qualified privilege
• honest opinion
• innocent dissemination
• triviality

Question 6

defences

justification

Answer 6

the statement is substantially true.
–This means that the vast majority of the statement is true.

Question 7

contextual truth

Answer 7

some untrue statements are made within the same context as some true statements and do not further harm the plaintiff’s reputation.

Question 8

absolute privilege

Answer 8

no-one can be sued for things said in parliament, court or between husband and wife.

Question 9

publication of public documents

Answer 9

you cannot be sued for publishing a fair copy or summary of a public document published in the public interest or for educational purposes.

Question 10

fair report of proceedings of public concern

Answer 10

A defendant can argue that the statement is a fair report of proceedings, and that the report was
published for the public’s information or for educational purposes. ‘Proceedings’ of public concern are those involving:
parliament, courts, tribunals, government inquiries, company meetings and meetings of professional or sporting organisations.

Question 11

qualified privilege

Answer 11

statements were published for a justifiable reason and were published reasonably without malice or spite.

Question 12

honest opinion

Answer 12

the statement was an expression of their honest opinion, based on proper material and relate to something of public interest\
—Proper material is a statement that is substantially true or relates to public
documents or a fair report of proceedings of public concern.

Question 13

innocent dissemination

Answer 13

no-one, such as libraries or booksellers, can be sued for unknowingly distributing defamatory information.

Question 14

triviality

Answer 14

this applies where the plaintiff is unlikely to be harmed by the publication of the statement.

Question 15

role of law in developing the elements & defences

common law

Answer 15

prior to 2006, the law of defamation in victoria was developed and governed by common law

there was a key distinction between libel and slander. Libel referred to defamation in a written form, and slander, referred to defamation in spoken form.

The relevance of the distinction between written and spoken forms of defamation was in relation to injury – in a slander claim, the plaintiff had to prove there was actual injury suffered

Common law also allowed corporations to sue if the corporation’s reputation had been attacked.

Question 16

role of the law in developing the elements & defences

statute law

Answer 16

• uniform legislation relating to defamation was introduced across australia in 2006.
• Those who have had defamatory information about them published can sue authours, publishers, broadcasters and distributors.
• there is no longer a distinction between statements that are written and spoken

Question 17

possible impacts

impacts on the plaintiff

Answer 17

• loss of reputation
• emotional impact, effect on mental health
• loss of wages and livelihood
• unemployment

Question 18

possible impacts

impacts on the defendant

Answer 18

• need to pay costs, sell assets
• public humiliation

Question 19

defamation

textbook definition

Answer 19

a type of tort that involves the action of
damaging a person’s personal or professional reputation in
the community through the communication of false and untrue
statements or information