If you are unsure if you have been defamed or if you are accused of defamation in Australia, knowing the elements of a defamation claim is essential. In the Australian law of defamation, to file for a successful defamation claim lawsuit, there must be certain elements in a claim that are proved clearly and legally.
This blog describes those fundamental elements, such as how the law operates, available defences, and deadlines you need to know, all under the Defamation Act 2005 (WA).
Defamation is when a person transmits false information concerning another, affecting their reputation in a negative way. It may be verbal (slander) or written/published (libel). These days, defamatory material tends to come up via social media messages, online defamation law, articles, and even emails.
Australian defamation legislation is primarily controlled by the Defamation Act 2005, which has been implemented in minor variations in various states and territories. With the reforms of 2021, the Western Australian legislation and other states included more explicit thresholds and provisions for limiting frivolous litigation.
To win a defamation suit under Australian law, the plaintiff must establish the following defamation claim elements –
The defamatory statement must have been conveyed to at least one individual apart from the plaintiff. It does not matter in what manner it was conveyed, either by way of a tweet, Facebook post, radio broadcast, printed article, or even a whisper within an open room.
According to Australian law, it doesn’t matter if the publisher had intended harm or not. All that is required is that the information was made public to a third party.
The content must identify the plaintiff specifically, either directly or indirectly. Even without naming the plaintiff, it’s sufficient that an average person might be able to determine the identity based on the content. This applies to organizations and corporations in some instances.
For instance, if a person writes a derogatory blog about the accountant in East Perth who recently messed up a client audit, and there is only one such professional who comes to mind, a defamation case would go forward.
The statement has to be defamatory, i.e., must lower the reputation of the person in the eyes of a reasonable member of society. It has to bring the person into hatred, ridicule, or contempt, or render them shunned or avoided.
Of particular importance is the normal meaning of the words. Courts determine what an average reader or listener would understand the material to mean, and not the intention of the publisher or what the plaintiff believed it meant.
Another significant change brought in by the 2021 reforms is the threshold of serious harm. The plaintiff needs to prove now that the publication has resulted in, or is likely to result in, serious damage to their reputation.
For-profit companies need to prove that the defamatory matter has caused (or will probably cause) substantial financial loss. This modification is intended to limit trivial or minor claims, separating those with no significant effects.
Even where all the requirements of a claim for defamation are met, the defendant will not be liable if they can assert a defence available under the Defamation Act 2005 (WA):
The defendant is able to establish that the statement is substantially true.
Certain defamatory imputations can be outweighed by other content that is true in the same publication.
The statement was one of opinion (as opposed to fact), expressed on a matter of public concern, and based on suitable material.
Applies where the publisher had a legal, social or moral obligation to pass on the information and the recipient had a corresponding interest in being told.
A new defence, which was added by the 2021 reforms, covers responsible publications on matters of public interest.
For instance, where an individual had no control over the content, for example, internet service providers or newsagents.
An action on how to prove defamation of character in Western Australia generally needs to be initiated within one year from the date of publication. Courts can extend to a maximum of three years where it is just and reasonable to do so.
It’s also important to mention here that businesses employing 10 or more individuals are unable to sue for defamation unless they are not-for-profit organisations or can establish serious financial loss.
If a defamation claim is successful, the remedies ordered may include:
Knowledge of the elements of a defamation claim is crucial in defending your reputation. The law provides relief to the injured but protects freedom of speech with defences and procedural protections. If you are concerned about defamation or have been accused in Western Australia, obtain legal advice early on your rights under the Defamation Act 2005 (WA).