Defamation

Question 1

What is defamation?

Answer 1

Tort seeks to protect individuals against materials that would harm their reputation.

Question 2

What does defamation involve?

Answer 2

The action of damaging a person’s personal or professional reputation in the community through communication of false or untrue statements.

Question 3

What does defamation involve?

Answer 3

The action of damaging a person’s personal or professional reputation in the community through communication of false or untrue statements.

Question 4

What are the elements of defamation?

Answer 4

• statement is defamatory and untrue
• statement refers to plaintiff
• statement has been published

Question 5

Statement is defamatory

Answer 5

• lowers reputation or standing in community, exposing to ridicule, contempt, hatred
• if ordinary person or reasonable person consider it to lower reputation.

Question 6

What are examples of defamatory statements?

Answer 6

• guilty of a crime
• known as associate of criminal/underworld figures
• alcoholic or drug addict
• liar, abusive, violent
  etc.

Question 7

Can defamation be contextual?

Answer 7

Yes.
- Need to consider time and place where statement is published
- Country and their morals
- Cultures, etc.

Question 8

Statement is untrue (part of defamatory)

Answer 8

Cannot be defamed if statement is substantially true (defence of justification)

Question 9

Statement must refer to plaintiff

Answer 9

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.

Question 10

Statement has been published.

Answer 10

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.

Question 11

What is the limitation of actions for defamation?

Answer 11

1 year from the date of publication.
- can be extended to 3 years if not reasonable for plaintiff to commence action within 1 year.

Question 12

Defences to defamation

Answer 12

• Disproving elements, (not defamatory, referring to plaintiff or published)
• justification (truth)
• absolute or qualified privellege
• honest opinion
• no serious harm caused.

Question 13

When making a defence for defamation, where does the burden of proof lie?

Answer 13

With the defendant.

Question 14

Justification (truth)

Answer 14

statement is substantially true (vast majority).

Question 15

Absolute privilege

Answer 15

Complete immunity from being sued in certain cases.
- applied to proceedings of parliament and courts/tribunals.

Question 16

Qualified privilege

Answer 16

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.

Question 17

When would someone have absolute privilege?

Answer 17

• Giving reference for job applicant
  
  • Answering police inquiries
  • Communications between teachers and parents
  • Giving someone a performance review at work

Question 18

Honest opinion

Answer 18

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.

Question 19

What would courts ask in deciding if ‘defamatory statement’ is an opinion?

Answer 19

• Would ordinary, reasonable person interpret statements as being statements of opinion?
  e.g critics

Question 20

No serious harm caused

Answer 20

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.

Question 21

Impacts on plaintiff for defamation

Answer 21

• Loss of reputation
• Emotional impact of defamatory material
• Loss of wages and livelihood
• unemployment

Question 22

Impacts on defendant for defamation

Answer 22

• Costs
• Need to sell assets
  Public humiliation

Question 23

Development of defamation in statute law

Answer 23

• 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.

Question 24

Development of defamation in common law.

Answer 24

• Elements, defences developed in common law
• reliance on common law meant defamation laws were inconsistent throughout Australia.