U2 AOS1 - Defamation

Question 1

Defamation and its purpose

Answer 1

• Defamation is a type of tort (a civil wrong). The relevant legislation in Victoria is the Defamation Act 2005 (Vic)
• The purpose is to protect a person’s reputation from being damaged by lies that are shared with the public

Question 2

The five elements

Answer 2

• The statement is defamatory
• The statement is untrue
• The statement refers to the plaintiff
• The statement has been published/shared
• The defamatory statement has or is likely to cause serious harm to the reputation of the plaintiff

Question 3

Statement is defamatory

Answer 3

• A statement is defamatory if it lowers a person’s reputation in the eyes of ordinary members of the community
• It is not necessary to prove that the defendant intended to hurt the plaintiff
• The plaintiffs claim will fail if one part of the matter conveys a defamatory meaning, but another part neutralises this
• A reasonable persons test will be used to determine whether the statement is defamatory. This means whether an ordinary or reasonable person would think less of the plaintiff because of the defamatory matter, hence indicating their reputation has been damaged

Question 4

Statement refers to the plaintiff

Answer 4

• The plaintiff must be referred to in the defamatory statement
  
  • The plaintiff can be explicitly named
  • It may be sufficient to prove that people reading, hearing or seeing the statement would reasonably conclude that it was about the plaintiff
• The plaintiff may be defamed as part of a group
  
  • The group must be sufficiently small enough for the plaintiff to be recognised as a part of

Question 5

Statement has been published/shared

Answer 5

• The statement must be communicated to a person other than the plaintiff. The plaintiff can sue once a third party reads, sees or hears the defamatory material
• It does not matter if the statement was published to the public or a small group of people
• Online, a person will be considered to have published a statement if they repost it, even if they did not author it

Question 6

Sharing caused, or is likely to cause, serious harm

Answer 6

• 2021 legislative changes to the Defamation Act 2005 (Vic) now require plaintiffs to establish that they have suffered, or may suffer, ‘serious harm’ because of the defamatory comments
• This element must be determined by the judge before the trial commences, unless there are special circumstances such as cost implications or available resources
• If the serious harm element is not satisfied, the case will be dismissed
• This element seeks to prevent frivolous and trivial defamation claims where the costs of taking the case to court exceed the damage is awarded