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What is Defamation? | Factsheet

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“My initial response was to sue her for defamation of character, but then I realised that I had no character.” –  Charles Barkley, Basketball player

As a concept, defamation is simple. If someone says (verbally or in writing) something that makes others think less of someone, then that is defamation.

In legal practice, defamation has become very complicated. This complexity increases with recent changes to the law.

Defamation: an example

The following example illustrates the complexities.

Ayesha loaned Denzel some money after he lost his job in lockdown. However, once lockdown was over, Denzel got a better job than he had before. Despite repeated requests he failed to repay Ayesha.

One night, after a few drinks, Ayesha got on her private Facebook and wrote the following post:

You really find out who’s real during lockdown. Loaned a “friend” some money and now he’s ghosting me. Makes me sick seeing him drive around in his red Ferrari like he’s the King of Fairfield. Bloke’s a thief and a liar. I also heard he’s been using his flash car to deal drugs to teenage girls. I wonder what he’s getting in return. Hope the ugly bastard has an accident.

Three people liked the post.

Denzel now seeks advice on defamation.

Facebook Defamation
Posting to social media? You could be defaming someone!

The first step: establishing the defamatory “imputations”

The first exercise in any defamation is to break down the words said into imputations.

An imputation is the meaning that can be attached to the words. Simply put, they’re describing words used to describe your opinion of someone after reading the defamatory material.

The obvious defamatory imputations in the above example are:

  1. Denzel is a thief
  2. Denzel is a liar
  3. That Denzel is a drug dealer
  4. Denzel deals drugs to teenage girls

A trickier imputation is:

  1. Denzel is dealing drugs in return for sexual favours from teenage girls.

This is arguably implied by the words used by Ayesha.

Whether the court agrees on your imputations depends on what is known as the ordinary reasonable reader test. The court asks, “what meaning would the ordinary reasonable reader take away from the words used?”.

 

Sometimes working out the imputations can be a very complicated exercise. Additionally, it is also important to understand the difference between defamation, abuse and clear subjective opinion. For example calling someone ugly is not normally defamation as it is clearly a subjective opinion. Similarly, calling someone a bastard is not normally defamation as it is recognised as a common term of abuse.

Identifying the defamed

Once it is established that there are possible defamatory imputations, the next question is identification.

Often this will be easy as the person’s name is in the statement, or their image is shown, but there are other ways to identify someone.

In the above example, Denzel is not named.

However, despite the lack of name, there is other material that an identification can be based on. We know that Denzel is probably based in Fairfield, and that he drives a red Ferrari. That may be enough to establish identity – however, Denzel would need to produce at least one witness who read the post (without being told to by Denzel) and recognised that it was about Denzel.

The more people that identified the person, the more potential for higher damages (compensation). If only one person identifies the person, then the damages they might receive would only be very small.

Serious harm: a new step in the process

Under the new defamation laws, there must be proof that the defamation caused or was likely to cause “serious harm” to reputation. This law is so new that it hasn’t been tested in an Australian court yet. Therefore it’s hard to say exactly what this threshold is.

England however has a similar law. The court has said that this means words alone cannot be relied on. There has to be evidence before the court of actual facts relating to the impact of the defamation.

The words, “liar”, “thief” and “paedophile” are clearly potentially damaging. But what Denzel would have to do is give evidence himself, or call witnesses, or produce documents, that show who the defamation was communicated to and the impact or likely impact of that.

As an example, Denzel may be a schoolteacher. In that instance, a fellow teacher might give evidence and say, “the post circulated in the teacher’s room and since then everyone has been avoiding Denzel”. Or Denzel might be a mechanic and his receptionist might give evidence, “since the post, we’ve had a lot of phone calls with people cancelling jobs saying they don’t want a “pedo” touching their car”.

Actual facts showing harm

The defamatory words alone are no longer sufficient to prove the defamation. There must be actual facts relating to an impact or likely impact.

These facts can include:

  • actual impact (like above examples);
  • size and type of the audience of the publication (i.e. the more people it is published to the more likely there will be an impact);
  • quality of the publication (i.e. if it comes from a reputable source it is likely more damaging);
  • nature of the persons existing reputation (i.e. are they well known; do they have a strong positive reputation built over many years); and
  • impact on the persons sense of wellbeing and mental health.

Under the new laws, this issue can be determined at an early stage well before trial. If the claimant is unable to show serious harm then the case is thrown out.

If Denzel can’t prove serious harm through witnesses or facts, then he might have problems as only three people “liked” the post and it was on Ayesha’s private Facebook page.

Defences to Defamation

 

Truth

“Truth is generally the best vindication against slander” – Abraham Lincoln

If the person being sued can prove that that the imputations are substantially true, then the defamation action fails.

The person being sued has to prove all imputations are true – not just some!

If Ayesha can prove that she gave Denzel a loan and that he promised to pay it back within a certain time; and that he has not paid it back and is now avoiding her – then she may get over the line on proving “liar” and “thief” substantially true.

If she can prove that he was in fact giving drugs to teenage girls, then she would get over the line on the fourth imputation. But the final imputation would be very hard to prove, and she may be in trouble here.

Always keep in mind, it is not what the person being sued believed to be true, it is what they can prove to be true

If Ayesha was basing the comment about dealing drugs on rumour, then that would not be enough. She would need a witness to come to court to say they saw it with their own eyes.

Contextual Truth

If a defamation contains some things that are true and some things that are not, then it is important to work out what is the most serious defamation.

In the above example, (assuming the imputation about sexual favours wasn’t made out) being called a drug dealer is the most serious thing. If that was true, then it swamps everything else. So, if it was not true that Denzel was a thief; but it was true he was a drug dealer, the court might say being called a thief does not cause any further harm to Denzel’s reputation beyond the harm being called a drug dealer has. Like everything in defamation law, this point would be arguable.

Honest Opinion

If the person being sued can prove:

  1. that what they said was an expression of opinion, rather than a statement of fact;
  2. that the opinion related to a matter of public interest; and
  3. the opinion was based on proper material

then they would have a defence.

Like everything in defamation law, this all comes down to the words used.

If Ayesha said something along the lines of, “My friend hasn’t paid me back, which makes me wonder whether he is a thief” then that is more like an opinion that just stating someone is a thief.

However, the defence would likely fail in this example as whether Denzel repaid his loan to Ayesha is not a matter of public interest.

If Ayesha had said, “I saw this guy give a bag with white powder to a teenage girl the other day and I think it might have been drugs” then that sounds more like an opinion and it is arguably a matter of public interest i.e. people would like to know who is potentially dealing drugs to their kids. Then it comes down to whether it was based on proper material. In this example it is based on what Ayesha saw, so that is proper material. But if it was based on a rumour then that might not be proper material.

Qualified Privilege

The final common defence in defamation is qualified privilege.

In order to succeed in this defence, the defendant must prove:

  1. The person being sued was giving someone some information on something where they had an interest in receiving that information;
  2. The defendant was being reasonable in providing that information; and
  3. The person wasn’t acting with malice.

It is unlikely this defence would come into play in the above example.

But let’s say Ayesha made a police report stating: “I saw a man in a red Ferrari giving bags of white powder to kids in Smith St” then she is clearly giving information, and she is clearly giving it to people who had an interest in that information. By reporting something she had seen – she was acting reasonably.

If she reported to police: “Denzel is a pedophile and drug dealing scum who gets sexual favours from his clients” in order to get back at him for not paying back the money, then she would be acting with malice and the defence would likely fail.

If Ayesha was a member of a Facebook Group called “Mums Against Drugs in Fairfield”, and posted: “I saw a man in a red Ferrari giving bags of white powder to kids in Smith St”, then it would be very arguable as to whether the people in the group have an interest in receiving that information.

What to do if you have been defamed

  1. The first thing to do is ensure there is evidence of the defamation. Note any witnesses if the defamation is verbal, or take screenshots if the defamation is written online. It’s important to also keep an eye on likes, shares and comments on social media pages.
  2. Contact a solicitor. O’Brien Criminal & Civil Solicitors offer free initial consultation where our Senior Defamation Solicitor can outline whether you may be liable for compensation in defamation.

Defamation Defence Representation

We also provide defence representation for people who are subject to defamation claims. This includes situations where you have received a cease and desist request letter.

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