Defamation in Australia: Common Questions and Answers
Defamation law in Australia can be complicated. In this article, our lawyers answer your most common defamation questions.
When can a defamation case be filed?
In all Australian states and territories, the limitation period for a defamation action is one year after the publication of the defamatory material.
In exceptional circumstance, an extension of the limitation period up to 3 years may be available.
The Court recently granted this extension where a separate court proceeding was already underway that would have impacted the ability to pursue a defamation action without prejudice (see the recent case of Landrey v Nine Network [2024] FCAFC 76).
Can defamation be verbal?
Yes, there is currently no legal difference between written and spoken defamation in Australia.
The main issue with spoken defamation is that the plaintiff must have evidence to support the exact word said.
What are common defences to defamation?
Unlike most civil actions, a defamation action places the burden of proof on the defendant rather than the plaintiff. To prove that a publication was not defamatory, a defendant will generally have to rely on one or more of the following defences:
- Honest opinion.
- Truth/Contextual truth.
- Absolute privilege.
- Innocent dissemination.
- Triviality.
Why is defamation ‘wrong’?
Defamation actions deal with a unique kind of ‘reputational damage’ that is largely absent from other civil actions. This presents an interesting question: why is damage to one’s reputation significant enough to be positioned alongside more the recognisable physical and financial damage?
Although reputational damage may not directly impact a person’s wellbeing, it can indirectly affect many aspects of their life. For example, unwarranted damage to one’s reputation could affect their business, which subsequently affects their income. Alternatively, false defamatory claims can cause psychological damage, emotional distress, and pain and suffering.
Can defamation be against a company?
Companies in Australia cannot sue for defamation unless they have fewer than 10 employees (including part-time employees) or are a not-for-profit organisation. However, this does not prevent an employee of a company from bringing a defamation action independently when the alleged imputation involves both themselves and the company.
When a defamation action is not available, larger companies may seek to rely on a claim for injurious falsehood. This claim has similar requirements to defamation; however, it instead protects companies when an imputation has resulted in economic loss, rather than reputational damage.
Is it still defamation if their name isn’t said?
In Australia, you can defame a person without mentioning their name. This rule is in place to prevent people bypassing defamation claims by making indirect imputations.
In fact, an imputation can be defamatory even if no harm was intended by the publisher, so long as it has still resulted in serious harm to reputation.
If I’ve been defamed on social media, is the platform host responsible?
If a defamatory post has been made against you on a social media site such as Facebook or Reddit, it can be unclear as to whether a defamation action should be brought against the company or the poster of the content. However, new rules have recently been implemented which protect ‘digital intermediaries’ such as these platforms.
These new privacy rules mean that digital intermediaries will likely not be held liable for defamation so long as they have an accessible complaints forum and have taken reasonable steps to remove the defamatory material within 7 days of a complaint.
Are defamation cases hard to win?
The high burden of proving serious harm, and the various defences available to defendants are the main reasons why defamation cases can be technically complex to pursue.
Fortunately, the expert team at Elit Lawyers by McGirr and Snell can help make the process as easy as possible. If you believe you have been defamed, call us on 03 9100 1850 to speak with one of our experienced defamation lawyers.
Danielle Snell, Managing Partner & Co-Founder | [email protected] | 0401 812 885.
Robert McGirr, Partner & Co-Founder | [email protected] | 0413 944 023.
Article co-authored by Kieran Bull, Paralegal at Elit Lawyers.