U2 AOS1 - Defamation Remedies and Impacts

Question 1

Defamation damages

Answer 1

• In a defamation claim, the plaintiff can receive compensatory damages, including special, general and aggravated
• Exemplary damages cannot be awarded as the right to free speech must be protected
• In Victoria, there is a $250,000 limit for damages for non-financial loss in defamation claims. The maximum amount can only be awarded in the most serious cases
• There are some mitigating factors that weigh towards a smaller award:
  
  • If the plaintiff has apologised or published a correction
  • If the plaintiff has already recovered damages in relation to any other publication that defamed them on the same subject matter

Question 2

Defamation injunctions

Answer 2

• Injunctions are court order that compel a party to do something or prevent a party from doing something
• Mandatory injunctions force a party to do something
• Restrictive injunctions prevent a party from doing something
• Injunctions aim to either remedy a past civil breach or prevent a future civil breach from occurring. If the defendant does not comply with the terms of the injunction, they may be held in contempt of court, be ordered to pay damages or be charged with criminal proceedings
• Injunctions can be awarded as a single remedy or in conjunction with another remedy, such as damages
• The court will consider if the injunction has a lasting effect. For example, if the identity of the defendant is known, the injunction may be effective. However, if the defendant is using pseudonyms or posting on the Dark Web, then junction may be a ineffective

Question 3

Impacts - plaintiff

Answer 3

• Loss of reputation (loss of status by being shunned by associates)
• Emotional toll (if defamatory material has had a lot of publicity, a person could develop anxiety or depression)
• Loss of wages and livelihood (taking time off work due to shame)
• Unemployment (losing business opportunities or support from colleagues)

Question 4

Impacts - defendant

Answer 4

• Financial impact (if the defendant loses the case, they may be ordered to pay damages and the plaintiffs costs. They may need to sell assets to achieve this)
• Public humiliation (if the claim is widely reported than the credibility and accuracy of the defendant’s conduct and speech may be questioned in the future)