We get a lot of enquiries from people who are distressed about something which has been said about them. It might be a highly critical comment online, a slanderous comment made about them in a social or community group, or could even be something reported about them in the media which is simply not true and which paints them in a terrible light. In our increasingly digital age, where people often post ill-considered comments online, this is becoming an area of growing concern.
For those of us in NSW, the Defamation Act 1995 provides some protection from defamatory statements being made against us. It allows us to take action when something with a defamatory imputation is “published” in a range of contexts, including an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical, television, radio, the Internet or any other form of electronic communication. It can also occur in the context of a letter, note or other writing, a picture, gesture or something stated orally.
Defamation can only occur when a statement is made about you to a third person. So, for example, a person cannot defame you by saying something terrible about you to your face unless someone else is present who hears what has been said.
So what do you do if you think you have been defamed? The most important thing is to send a Concerns Notice, demanding an apology and retraction. You must do this first and allow the other person time to respond before you can commence court action. It is best to get a lawyer to help you with preparing this because there are some technical requirements in the Notice which must be met, or you will not be entitled to commence court action until the errors have been fixed.
Usually there will be a negotiation regarding the issue to see if a compromise can be agreed upon. There might be an offer of a public apology, or an undertaking to cease making further comments, together with an offer of financial compensation. If no agreement can be reached, then a court case can be commenced, and ultimately a judge or a jury may determine the case for you.
Most defamation cases never get to court for two important reasons. First, as the old adage goes, “if you throw enough mud, some of it will stick”. Court proceedings can have the unfortunate effect of amplifying the defamatory statement to a much wider audience, potentially furthering the damage. The second reason is a financial one. Legal costs in these cases will always be tens of thousands of dollars, and can often run well over $100,000! For these reasons, it is often only the wealthy and high profile disputes that end up running to a hearing in court, and which get reported in the media.
There are a number of defences to a defamation claim, so anyone thinking of going down this path needs to make sure that the defamatory publication is not protected. Some examples of where statements which appear defamatory may still be protected include where the statement is substantially true, where the statement represents the honest opinion of the person making the statement, and where the person is fairly reporting on a matter of public concern. Matters considered to be “trivial” in the scheme of things will also not attract the court’s sympathy, so victims need to be consider the matter objectively to make sure they are not being unduly oversensitive.
If you are the person who has inadvertently made a defamatory publication, it is important to know that a court will usually discount the damages it might otherwise order you to pay if you have made an apology to the other party, and if you have published a correction. If you realise that you have overstepped the mark in something you have said or written, get on the front foot and take steps to amend early before things get out of hand.
We welcome enquiries in this important area, and look forward to hearing from you.