Defamation law in Australia is not as straightforward as it may seem. As a complicated area of law, defamation law throws up many questions. What exactly constitutes defamation? What’s the difference between libel and slander? Who can sue for defamation? Who can be sued for defamation? How much money might you get if you’ve been defamed? How do you sue for defamation?
As lawyers specialising in defamation law, we’ve put together the ultimate guide to protecting your reputation with Australia’s defamation laws.
In Australia, defamation laws are not federal; defamation laws are a matter for state and territory courts. However, Australia’s states and territories have had substantially the same defamation laws since 2005. These defamation laws protect individuals and small businesses from statements that damage their characters or reputations.
There are two essential ingredients to defamation:
1. A person or business has said something about you to (or within earshot) of another person. (It’s not defamation if someone said something to you in private or they wrote to you privately.)
2. What the person said or wrote might make someone else think less of you or your small business.
It isn’t necessary for the defamatory statement to have been broadcast to an audience of millions or to have appeared in a newspaper. You can bring an action for defamation even if only one other person heard the defamatory remark or read the email. It all depends on context.
If you are an individual or a small business, you can sue more than one person or business for the same defamatory statement. That’s because defamation law allows you to sue the person who made the statement and everyone who “published” it. For more on the meaning of publishing a defamation, read on.
Most negative statements could be considered defamatory in court because the law assumes you are of good character until someone proves otherwise. That means there’s a good chance that anyone saying you’re not a good person or business is defaming you.
However, whether a particular statement constitutes defamation depends on the facts. It could be defamatory to call a Liberal MP a communist. However, it could also be defamation to accuse a communist of being a member of the Liberal Party. It’s all about context because different statements would injure different people.
Defamation law is there to protect you from statements that would damage you because they might lead someone to think less of you or your small business. It doesn’t matter that the statement wouldn’t damage someone else.
Defamation comes in two forms:
1. Slander is defamation that is spoken aloud (but not recorded). So if someone says something damaging about you in, say, a strata meeting, that would be slander.
2. Libel is defamation that is written down or otherwise recorded. For example, a newspaper article, a Google review or a Facebook post might be libellous. Also, spoken words become libel (not slander) when the words are recorded. For example, it would be libel if someone defamed you on the radio, on TV or in a YouTube video.
In Australian law, however, the difference between slander and libel is no longer important. Defamation is defamation.
In defamation law, it doesn’t matter whether someone intended to damage your character or reputation with what they said. Defamation law exists to protect you from harm, whether that harm was an accident or a deliberate slander or libel.
This is an increasingly common question because of the rise in malicious Facebook comments and gratuitous Google reviews. As discussed in Who can sue[1] below, you can sue anyone or any business for defamation. That includes suing Google or Facebook for defamation of character or damage to the reputation of your small business because of something one of their users said.
When it comes to something like a Google review, the reviewer might have the “honest opinion” defence to a defamation claim. The legal test is whether the opinion in the Google review was:
The second part of the test is critical. Just because you have an opinion, it doesn’t mean you’re entitled to express it where it would damage someone else. An experience defamation lawyer will be able to break down how a court might view the balance between a reviewer’s opinion, the public interest and the damage to your business.
Google and Facebook are well aware that their platforms can be used to spread defamation. You can find Google’s defamation reporting process here. The equivalent Facebook form is here. You can fill in these forms yourself, although our experience is that both companies pay more attention when they are contacted by the victim’s lawyer.
If you’ve been attacked, it’s good news that almost any negative statement could be considered to be defamation under the law. However, that doesn’t mean a court will side with you over every negative statement, especially if the statement is damaging but true. Also, the court can agree you were defamed but not award you compensation or any other form of relief. The complicated defences to defamation are a good reason to get legal advice about defamation before deciding whether your claim is strong enough to pursue.
There are eight possible defences to a claim of defamation:
In Australia, anybody can sue for defamation; you don’t have to be a celebrity or a public figure. In fact, the Law Council of Australia rates Australia as the defamation capital of the world. Every day in Australia, people sue because they were defamed in a local Facebook group, at a strata meeting or in a group email. It doesn’t matter whether you’re rich, famous or one of the rest of us: defamation law exists to protect you from statements that damage your reputation or that throw your character into doubt.
Companies with fewer than 10 employees and certain not-for-profits can sue for defamation. (Larger companies can sue over untrue and damaging statements under the laws about misleading and deceptive conduct. If that’s your situation, contact us for more information.)
Yes, you can sue for defamation even if the person who made the negative comment didn’t name you or your business. All you need is to show the court that someone could work out that the defamatory statement was about you.
You can sue two types of person or company for defamation:
In defamation law, making or repeating a defamatory statement is known as “publishing” the statement. This meaning of publishing includes any repeating or other spreading of the statement, including for example, telling someone else, broadcasting the statement on TV, saying it in a YouTube video or positing it on Twitter or in other social media.
You can sue for defamation whether you’re suing a business, a school, Facebook, Google, a newspaper, a TV station, a podcaster, your employer, your manager or supervisor, a fellow employee, your ex-husband, your ex-wife, a customer, a rival company, a teacher, a student… anyone. The law is there to protect you, regardless of who is attacking your reputation or character.
Craig says something defamatory about you to Louise, a journalist. Louise writes a story that includes what Craig said and her newspaper prints the article and puts it online.
In this example, you could sue:
Similarly, if someone writes something about you or your small business on Facebook or in a Google review, you can sue the person who wrote the post or the review and you can sue Google or Facebook for defamation.
If you sue Google, Facebook, Yelp, TripAdvisor or a similar company for defamation, the court will treat Google and Facebook the same as it might treat a newsagent stocking an edition of a newspaper that contains defamatory statements. Like newsagents selling newspapers, Google or Facebook aren’t the ones making the defamatory statement in the reviews on their sites. For that reason, Facebook, Yelp, TripAdvisor, Google and other sites might be able to claim the defence of innocent dissemination (see the 8 defences to defamation). That’s why you need a strategic defamation lawyer who knows how to take away that defence.
In our example above, you could pick and choose which of the three parties to sue, but usually you would sue all three of the parties for defamation because:
In Australia, defamation is almost always a civil matter, not a criminal matter.
In law, a “civil” matter is a dispute between two parties. The parties can be individuals or businesses. Civil matters don’t involve arrests, charges or anything else you see dramatised on TV. In a civil matter, one party “sues” another. If a civil court finds one of the parties has done something wrong, the judge will look for a “remedy” — a way to put the matter right. Often that remedy will be “damages” (compensation). Also, the court will order that the defamation be taken down (if possible) and that no-one may repeat it.
There is an offence of criminal defamation, and someone found guilty of criminal defamation could be sent to prison. Although many victims of defamation would (understandably) like to see their persecutor dragged down to the cells, charges for criminal defamation are not common. If you’ve been defamed, you are far more likely to be suing a person or a business in a civil court. It is extremely improbable that you will see them charged with a criminal offence and prosecuted in a criminal court by the government or by you.
It takes only a minute to fire off a reply-all that damns someone’s character. Anyone can throw up a restaurant-wrecking Google review before their Uber pulls up. In cases like this, the person isn’t considering they might be on the wrong side of the law. Certainly, the person isn’t considering that Australian courts are known for handing out “eye-watering sums” to the victims of defamation.
Often a strategic approach from a good defamation lawyer will open the eyes of the person who made the statement and anyone else who published or repeated it. Faced with a firm explanation from a lawyer stating that you are ready to defend your reputation, many people and businesses will back down immediately.
At the same time, you can negotiate compensation and any of the other remedies for defamation without having to go court.
The legal term for compensation for defamation is “damages”. Damages are used by courts to put you in the position you would have been in without the defamation. For example, if a defamation cost you a business deal worth $50,000, you might expect the court to award you $50,000 in damages. Often, however, the calculation is not that straightforward. That can lead to substantial judgments.
Hollywood stars and media empires make for high-profile examples, but the law applies equally to everyone:
Defamation is a complex area of law, which is why only a few lawyers build a successful practice in defamation law. The benefit to the client of working with a lawyer who runs defamation cases all the time is that their defamation lawyer will know the current nuances and be able to design a strategy that gives a client the best chance of a positive result. A good strategy could give you everything you want without having to go to court.
The goals of your strategy could include:
In the case of defamation, well-crafted legal strategies often succeed without going to court because they force the other party to consider whether they could successfully defend their statements. At the same time, the other party will be made aware of what might happen to them if a court were to find that you have been damaged by what was written or said.
Our experience is that internet companies like Facebook and Google are seldom willing to defend their users. When approached correctly, Facebook and Google may take down allegedly defamatory material rather than go to court to defend a comment or a review by someone who uses Google and Facebook’s services for free.
Every defamation case is different, so you should always get legal advice from a qualified solicitor about your situation. However, a well-run case might cost less and be faster to resolve than you have been led to believe by media reports of high-profile defamation cases. Those cases are the exceptions, not the norm. Most cases are settled out of court.
At Twomey Dispute Lawyers, we see defamation cases all the time. We act for the victims of unfair Google reviews, the subjects of vicious comments on Facebook and employees who have been defamed at work. If you have been defamed, the law is there to protect you and we can use it to help you get the best possible result.
Call us for a confidential conversation about your situation on 1300 286 578 or email us at info@tdllaw.com.au
Ben is an accredited specialist in commercial litigation with extensive experience in defamation law. His defamation clients include individuals, small businesses and PR agencies protecting their clients from reputational damage.
