Defamation

Question 0

Defamation defences

Answer 0

1. Justification- this means the imputation is substantially true.
2. Contextual truth - this means that there are several imputations and those that are untrue are more minor and less damaging to ‘Z’ than others which are in fact true and thus justified.
3. Honest opinion - this means stating an honest opinion about a matter of public interest, as long as the opinion is based on proper material.

Question 1

Three elements of defamation are -

Answer 1

1. A defamatory matter
2. Makes reference to the plaintiff
3. It is published

Question 2

What is the intention of defamation law?

Answer 2

The law of defamation seeks to balance the protection of an individuals reputation with freedom of speech.

Question 3

The first element of defamation is that a defamatory imputations was made:

Answer 3

Defamatory involves the defendant’s Imputation having a) damaged the plaintiffs personal reputation, b) damaged the plaintiffs business, trade or profession, or c) caused others to ridicule, shun or avoid the plaintiff.

Question 4

There are six generally accepted areas of defamatory matter, these regard claims of the plaintiff being:

Answer 4

A liar, dishonest, a criminal, a rapist, lacking in principle or being incompetent.

Question 5

Defences to defamation are-

Answer 5

Justification: which means that the imputation was truthful and therefore is justified.

Contextual truth: this involves the defendant having made several imputations of which, some were untrue however minor and less damaging, and the majority were true and thus justified. Therefore contextually, the imputations were largely true - justified.

Honest opinion - involves the defendant claims having been a factual and honest opinion which was of public interest.

Privilege - a.) absolute privilege is applicable provided that the imputation was made in parliament or court, b) involves the defendant’s imputations having been untrue, however as the defendant acts were reasonable - eg. research was conducted as to determine the fact of the imputation - and they were not motivated by malice, the defence of qualified privilege would apply.

Triviality - the defendant may claim the defence of triviality if it is unlikely that the imputation made would cause harm to the plaintiff’s reputation

Question 6

The possible remedies for a claim of defamation include:

Answer 6

Out of court settlement - the person defamed may wish to issue a ‘concerns notice’ to the publisher of the defamatory matter explaining what they object to. Following which the publisher may choose to make an ‘offer of amends’, apologizing for their actions and offering to pay any reasonable compensation for the damage suffered.

Damages - monetary damages will be awarded for either economic loss (where the plaintiffs business has suffered etc.) or non-economic loss (in which the plaintiffs damage to their reputation is considered).

Injunction - alternatively the court may order the defendant to stop publishing the defamatory material.

Question 7

The second element of defamation is that it refers to the plaintiff, this occurs:

Answer 7

So long as an ordinary person could assume that the defamatory matter refers to the plaintiff, even if it is not direct or is unintended.

The matter does not have to be written, it may be a photograph or drawing.

It could alternatively make reference to a class of people, of which the plaintiff was a member.

Question 8

Third party publication of the matter…

Answer 8

Publishing require that the imputation be communicated to a person/s other than the plaintiff.