The Defamation Act 2005 (Vic), (“the Act”) along with established common law (previous cases), governs defamation action and cases in Victoria.
There are three vital elements to establish a Defamation claim that must be proven by the plaintiff which include:
- Publication;
- Identification; and
- Defamatory meaning.
The term plaintiff refers to the person who has been defamed and brings the action, and the term defendant(s) refers to the person or people who allegedly defamed the plaintiff.
1.Publication
This is the founding element of a defamation claim and consists of a communication of a matter defamatory about you to some other person.
In the past, a publication was either libel or slander. Libel was the publication of defamatory matter in permanent form such as a newspaper article or book, while slander was the publication of defamatory matter in non-permanent form such as spoken comments.
The distinction between libel and slander no longer exists and instead both are now referred to as a publication. A publication occurs where the material is published (which can include spoken) and is received by the third party and understood. That is when the damage is presumed to have occurred.
Each publication can give rise to a new and separate claim.
2. Identification
Identification of the plaintiff in the publication is an essential element to the cause of action. It must be shown that the defendant published the defamatory matter ‘of and concerning’ the plaintiff or ‘about’ the plaintiff. Identification can be by name but it does not necessarily have to be.
A person can be sufficiently identified also by title or other information that a reasonable person would associate with the plaintiff such as ‘the Chief Executive Office of the Afl…” which would be easily discernible and enough to establish this element.
3. Defamatory Meaning
The published matter needs to convey a defamatory meaning which is words that convey a meaning or an imputation (asserting or attributing an act or condition to a person) which would likely to cause ordinary or reasonable people to think less of the person who is being defamed.
It should be noted that a person who repeats or spreads the rumour (if that is what it is) can be held as liable as the original publisher. It is no excuse to say that someone else said it first so it must be true.
Defences
The Defendant, having been accused of making a defamatory statement, has potential defences which may apply to the publication that has been made. These defences can exist at common law and sections 24 to 33 of the Act.
A. Truth
There is a defence to a claim if the publication complained about is true in substance and in fact. It follows on that by telling the truth about the Plaintiff, the reputation is not inappropriately lowered but people’s views are lowered to the appropriate level.
B. Privilege
It is also a defence to a defamation claim when the publications made to or by parliamentary bodies, courts and tribunals established by law and publications made in relation to proceedings in those bodies. Defences also exist for the publication of public documents and a defence of fair report of proceedings of public concern.
C. Qualified Privilege
Qualified privilege can be a defence in circumstances when the defendant can establish that the occasion was one where there was a duty to publish to a person who had a duty or interest to receive the information. A full list of considerations the court may take into account when deciding on whether this defence will apply can be seen under s30(3) of the Act.
D. Innocent Dissemination
The Innocent Dissemination defence might apply when the defendant can prove that he or she published the information as a subordinate distributor, that the defendant did not know and ought not to have reasonably known that the matter was defamatory and that the lack of knowledge was not due to any negligence by the Defendant.
A subordinate distributor means a person who is not the first to publish the matter, not the author or originator of the matter and did not have the ability to control the content before the matter was first published.
E. Triviality
Lastly, a defence of triviality may be used if the defendant can prove that in the circumstances, the published matter was unlikely to harm the defendant.
The elements of this defence to be considered are:
- The circumstances of the publication; and
- Whether because of those circumstances, the Plaintiff was unlikely to suffer any harm.
The Legislation provides an early resolution procedure for defamation matters. That means that not every matter needs to proceed to Court and there can be solutions early in the matter. If this procedure is used and no resolution reached, the matter may need to proceed to Court. The remedy generally sought in defamation proceedings is damages of a monetary nature to compensate for the harm done by the Defendant.
For further information or to discuss a matter you may have, contact Kirk Walker on 5303 0282 or kirk@ballaratlawyers.net.au.
The information on this website is of a general nature only. It is not, nor is it intended to be, legal advice. You should consult a lawyer for individual advice about your particular circumstances.
Liability limited by a scheme approved under Professional Standards Legislation.
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