What is defamation law?

The Oscar-winning Australian actor Geoffrey Rush was awarded $2.9 million in his defamation case. Actress, Rebel Wilson, was initially awarded $4.74 million in her defamation case, which was later reduced significantly by approximately 90%. So, with the new amendments to defamation law in most Australian states and territories as of 1 July 2021, will we see these types of figures again? More importantly, do the amendments lock out those spurious defamation cases? Are the amendments timely with respect to the uprise in cases resulting from damaging Google reviews and Facebook rants for the “keyboard warriors” amongst us. Who do the amendments benefit? One thing is for certain, defamation law remains important and whilst you might not see the awards in the millions like Geoffrey Rush did, there are reputational interests that are still valuable and worth protecting.

This article does away with explaining the amendments to the law of defamation that have recently come into effect and focuses on what defamation law looks like now and will look like for you when considering if it is worth pursuing the [insert the name of a contemporary Karen or Ken here i.e. usually someone who mistakes their own discomfort for an emergency].

What is the law of defamation?

We are all people of good character; so, assumes the law, until proven otherwise. It is the law of defamation that provides a cause of action for people and some corporations to protect their reputation.

The law of defamation requires the communication (otherwise known as a “publication”) of a defamatory matter concerning and identifying the claimant, to a person other than the claimant, which has caused or is likely to cause serious harm.

We can break this down as follows:

1. a “publication”;
2. that identifies the claimant;
3. that is defamatory; and
4. has caused or is likely to cause “serious harm”.

Publication / Communication

The first element is the publication or the communication of a defamatory matter. The publication can be written (newspaper, Facebook, Google review, email); verbal (radio, television, meeting or a conversation); images (painting, poster, cartoon). The publication must have been read or heard by at least another person/third party.

Identification

Importantly, the publication or the communication must identify the claimant. Defamation will only have occurred if the claimant can be identified by what is being said either expressly or “of and concerning” the claimant or by reference to extrinsic facts.

Defamatory matter

The meaning of the words said about the claimant by the publisher must be determined based on what the ordinary, reasonable listener or reader would understand the publication to mean and regardless of the publisher’s intent. These are known as “imputations”.

Imputations are determined from the “natural and ordinary meaning” that an ordinary person would understand the words to have. Even more so now, the imputations need to be drafted precisely. However, generally, an imputation will be defamatory if it is:

1. calculated to injure the reputation of the claimant by exposing them to ridicule;
2. made to lower the claimant in the estimation of right-thinking members of society generally; or
3. it would cause others to avoid the claimant.

A new element – “serious harm”

It is now an element to the cause of action for defamation that the publication of a defamatory matter(s) about the claimant must have caused serious harm, or is likely to cause serious harm to the reputation of the claimant.

This is an entirely new threshold in the law of defamation from 1 July 2021, which requires the claimant to show that it suffered serious harm before commencing an action in defamation. This is the element that may disarm some claimant’s from bringing actions in defamation. For individuals, this element needs to be assessed against their reputation. For corporate claimants (who are entitled to sue[1]) they must establish “serious financial loss”.

However, it remains to be seen what is considered “harm” and what will be necessary to make it “serious”. We are grateful that some United Kingdom cases[2] have tried to settle this aspect in their corresponding laws of defamation. Establishing the serious harm to reputation will require an assessment of the actual facts about the impact of the defamatory matter(s) and not just the meaning of the words[3]. Some of the factors that may assist with this assessment are the size of the audience, quality of the publication and whether the claimant had any reputation to begin with.

Where does this lead us?

These amendments do not completely lock out claimants (be it individuals or corporations) in bringing an action in defamation. The concept of “serious harm” is a hurdle and yet to be tested in Australia. However, “serious harm” does not need to be immediately identified and can be based on the likelihood of the defamatory matter that is likely to cause “serious harm”. Therefore, if you or your corporation has had its reputation defamed, we recommend coming to see us as soon as you can to:

1. assisting you with a concerns notice addressed to the publisher of the defamatory comment(s), which is carefully drafted with the appropriate imputations and seeking that the publisher remove the content or publication(s) an apology;
2. assessing the likelihood of the serious harm;
3. managing/limiting the reputational risk; and
4. ensuring that you have the best possibility to bring proceedings (if necessary) within the one-year time limit from the date on which the defamatory matter is published.

Some tips:

• if you need to disseminate information about a particular person in the workplace or concerning a third party that may cause them to be ridiculed, seek advice first (be careful who you copy into that email!);
• take a screenshot of the post clearly identifying the date, time, and the people who have liked it, shared it and commented on it; and
• save a copy of the email clearly identifying the people it was sent to and/or copied to.

[1] Corporations are not entitled to sue for defamation except where they are an “excluded corporation”. “Excluded corporation” means (a) not-for-profit corporations, and (b) for-profit corporations with fewer than 10 full-time employees (which now includes independent contractors to an extent).

[2] Lachaux v Independent Print Ltd & Anor [2019] WLR 18

[3] This is based on UK’s position, which the Australian Courts are likely to adopt, at least initially