Defamation & Media Law

If you think a comment or publication may have damaged your reputation and/or caused you loss, you could have a claim.

To have a defamation claim:

1. It must be: spoken or written communication that;
2. Is directly about you or your business (of 10 employees or less) that;
3. Is communicated to someone else.

If you believed you have been defamed It’s important to seek legal counsel as you have 1 year from the date of publication to bring forth a defamation action. To begin a defamation action a “concerns notice” needs to be issued to the other side.

The date of publication means the date that the matter was first made available for public access or sent electronically to the recipient.

The laws have recently changed if you have a website or run a Facebook group.

In a recent High Court case, Fairfax Media Publications v Voller, it was found that the owner of the Facebook page was responsible for all the comments made by others on their page. An owner of a social media page is called a “publisher” and is responsible for everything on the page, as they are providing a platform for the publication of the defamatory material through their page. It does not matter if the owner of the page is unaware of the content being published nor intends for it to be published.

This case has created a precedent for owners of social media pages to more closely moderate content. This can come in the form of reading comments regularly or even turning off the ability to comment on posts.

If you’ve been accused of defamation or received a ‘Concerns Notice’ under the Defamation Act, seek legal counsel immediately. It’s important to understand the potential impact of the claim, and the legal options you have, including identifying any available defences.

There are many defences including:

• “Justification”- if the contents of the statements are substantially true;
• “Contextual truth”- if within the context it can be implied that what was communicated was substantially;
• “Absolute privilege”- if the material is published in the course of proceedings of a parliamentary body;
• “Publication of public documents”- a public document can include a report published by a parliamentary body;
• “Fair report of proceedings of public concern’”- The intention behind these publications is generally for the information of the public or advancement of education. These include court proceedings and must be a fair account of the whole of the proceedings.
• “Qualified privilege for provision of certain information”- if the recipient has an interest or apparent interest in having information on the subject which is reasonable in the circumstances and the matter is published in the course of giving the recipient information on the subject.
• “Honest opinion”- the statement is an expression of the opinion of the defendant rather than a statement of fact; and the opinion is related to a matter of public interest; and the opinion is based on proper material. The proper material- is substantially true; or based on qualified privilege; or a public document; or a fair proceeding or public concern.
• “Innocent dissemination”- the person who published the defamatory material in their employment capacity; neither knew or should have known the material was defamatory and their lack of knowledge that this material was defamatory was not negligent.
• “Scientific or academic peer review”- it is a defence if the matter was published in a scientific or academic peer reviewed journal
• “Public interest”- it is a defence if is prove that the matter is of public interest and the defendant reasonably believed that the matter was of public interest, after the court considers the circumstances of the case.

Our experienced team at Hickey Lawyers can assist you at defending defamation claims or settle defamation matters before they reach court. Contact us today for initial guidance or advice.