By Brendan Pitman, Lawyer
This, and other like phrases, is heard all too often. With ever increasing media outlets, we are fielding many enquiries and concerns from both sides of the joke wondering if a particular phrase, comment, article or other material is defamatory, and, if so, what are their options. Thankfully, defamation law exists and provides options to those who are the subject of defamatory material.
Defamation is a civil wrong that occurs when material relating to an individual is published and that material lowers the reputation of the person in the eyes of the public. The Defamation Act 2005 governs the law of defamation in Queensland alongside the common law (case made law).
Both an individual and a corporation (employing fewer than 10 people or a not-for-profit organisation) may bring an action in defamation. For an action in defamation to be successful, three elements must be satisfied:
- the material complained of must be published to a third person;
- the material complained of identifies you;
- the material contains information that was defamatory, regardless of whether the material was intentionally published or not.
A common difficulty in a defamation action is in proving that material is defamatory. Just because a person feels that certain material was defamatory does not necessarily mean that the material is, in fact, defamatory. It will depend on whether the material was capable of being defamatory and whether an ordinary person would have taken the published material to be defamatory. It is important to understand that the defamatory material can be expressly stated or it can be implied.
A person or corporation may have a defence if the published material was their honest opinion. The opinion must be related to a matter of public interest and be based on proper material.
Another defence available to a defamation action is that of justification. For this defence, the publisher of the material must establish that the material is substantially true.
The publisher of material may also claim the defence of triviality. This defence may be established if the publisher of material can prove that the publication of the material was unlikely to sustain any harm.
There are various other defences that may be available to a person or corporation that has published material which another considers to be defamatory. It is important to seek legal advice to understand what defence, if any, may assist you if a defamation action is commenced.
Often, it is best to try and resolve the issue without the need to commence a defamation action, and the Act provides ways to resolve defamation disputes without the need to start proceedings. Although, commencing proceedings sometimes proves necessary depending on the attitude of the parties and the desired result. If proceedings are necessary, they must be commenced within 12 months from the time the defamatory material is published. In certain circumstances, this time period may be increased to 3 years.
Defamation is no laughing matter and if you believe you have been defamed or that you have published defamatory material, it is important to seek legal advice as soon as possible to mitigate any damage that may be caused by the published material. With the assistance of a lawyer at MBA Lawyers, you can formulate a strategy that will best suit your particular circumstances and will give you the best possible chance of achieving the desired result in the most cost effective way.