Defamation Flashcards
What is defamation?
Tort seeks to protect individuals against materials that would harm their reputation.
What does defamation involve?
The action of damaging a person’s personal or professional reputation in the community through communication of false or untrue statements.
What does defamation involve?
The action of damaging a person’s personal or professional reputation in the community through communication of false or untrue statements.
What are the elements of defamation?
- statement is defamatory and untrue
- statement refers to plaintiff
- statement has been published
Statement is defamatory
- lowers reputation or standing in community, exposing to ridicule, contempt, hatred
- if ordinary person or reasonable person consider it to lower reputation.
What are examples of defamatory statements?
- guilty of a crime
- known as associate of criminal/underworld figures
- alcoholic or drug addict
- liar, abusive, violent
etc.
Can defamation be contextual?
Yes.
- Need to consider time and place where statement is published
- Country and their morals
- Cultures, etc.
Statement is untrue (part of defamatory)
Cannot be defamed if statement is substantially true (defence of justification)
Statement must refer to plaintiff
Must established they were being referred to in statement.
- defamed person not always mentioned by name
- sufficient to prove people viewing statement reasonably believe it was referring to plaintiff.
- Plaintiff may be defamed as part of group.
Statement has been published.
must prove statement communicated to third party.
- not defamation to ‘defame’ person 1 on 1.
- publication means third party has read, seen or heard material
- can be oral or written.
What is the limitation of actions for defamation?
1 year from the date of publication.
- can be extended to 3 years if not reasonable for plaintiff to commence action within 1 year.
Defences to defamation
- Disproving elements, (not defamatory, referring to plaintiff or published)
- justification (truth)
- absolute or qualified privellege
- honest opinion
- no serious harm caused.
When making a defence for defamation, where does the burden of proof lie?
With the defendant.
Justification (truth)
statement is substantially true (vast majority).
Absolute privilege
Complete immunity from being sued in certain cases.
- applied to proceedings of parliament and courts/tribunals.
Qualified privilege
Protects person who publishes damaging information about another person, but does so with NO MALICE and for GOOD REASONS.
- only applies when person has legal, social or moral duty to do so.
When would someone have absolute privilege?
- Giving reference for job applicant
- Answering police inquiries
- Communications between teachers and parents
- Giving someone a performance review at work
Honest opinion
statement is expression of honest opinion rather than statement or fact.
- must be of public interest and opinion based on proper materials
- may include theatre critics or restaurant reviewers.
What would courts ask in deciding if ‘defamatory statement’ is an opinion?
- Would ordinary, reasonable person interpret statements as being statements of opinion?
e.g critics
No serious harm caused
Defendant can show plaintiff is unlikely to be harmed by defamatory plaintiff
- May occur is statements are minor or clearly a joke, would be taken this way by others.
Impacts on plaintiff for defamation
- Loss of reputation
- Emotional impact of defamatory material
- Loss of wages and livelihood
- unemployment
Impacts on defendant for defamation
- Costs
- Need to sell assets
Public humiliation
Development of defamation in statute law
- major reform in 2005, aimed at addressing inconsistency throughout Australia.
- uniform defamation laws developed in all states.
- no longer distinction between slander and libel
- corporations cannot commence defamation claim.
Development of defamation in common law.
- Elements, defences developed in common law
- reliance on common law meant defamation laws were inconsistent throughout Australia.
