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Defamation

What is defamation?   

When will something be defamatory?   

What can I do if I think someone has defamed me?  

What can I do if I think I have defamed someone? 


What is defamation?

The law of defamation is used to protect someone’s reputation. Defamation occurs where someone hurts the reputation of another by spreading false information about them.


When will something be defamatory?

 

DISCLAIMER: The following scenario is fictional and should not be used as legal advice.

Dan is a year 12 student at Slanderville College. His parents have agreed to fund his Schoolies trip to the Gold Coast if he keeps his grades up.


Everything was going to plan until Dan’s 18th birthday, when he enjoys a night of celebrations at a local club. Dan is so tired the next morning that he fails his English trial.


Dan’s Schoolies dreams are shattered and he blames his substitute English teacher, Paula, for the sudden plunge in his grades. He believes Paula has disliked him since she arrived and at lunchtime jokes to his friends that she is probably secretly in love with him. Dan’s friends think the joke is hilarious, so he decides to post it online when he gets home.


Dan has defamed Paula if he has communicated something defamatory of Paula to another person.
  1. The material must be communicated by Dan to another person, other than Paula. The material can be communicated by whatever means, such as tweeting a tweet, posting on Facebook, or writing graffiti on a public wall.
  2. The material must be about Paula. The material will be about someone if it names them. If the material doesn’t name someone, it will be about them if a person would reasonably believe it’s about them.
  3. The material must be defamatory of Paula. Material is defamatory of someone if it causes an average person to think less of them. However, material may be damaging without being defamatory.
Dan’s posts on Twitter and Facebook go viral and reach thousands of people, with other students liking, commenting and sharing the posts. Staff at Slanderville College and other surrounding schools soon learn of the rumour.


 

While the school agrees the rumour is unfounded, the damage to Paula’s reputation has been done and she is unable to find employment at any other schools after her contract ends. Jobless and humiliated, Paula is forced to move out of her rented apartment and seek a lower-paying job in retail.

What can I do if I think someone has defamed me?

Someone may have defamed you if they have communicated something defamatory about you to another person.


If you think you have been defamed, it is important to remember that the defamatory material must cause the average person to think less of you. Material you personally find hurtful or material you personally disagree with will not necessarily be defamation – for example, if the material is substantially true or is unlikely to cause you harm.


If you think you have been defamed, there are a number of legal and non-legal pathways available to you:

  1. you can ask the person who defamed you to take down the material;
  2. you can report the defamatory material to social media and ask them to take down the material (if it was posted on Facebook or Twitter etc);
  3. you can send the person who defamed you with a legal notice asking them to take down the material and make a public correction;
  4. you can sue the person who defamed you (or anyone involved in defaming you) for defamation. If you have been defamed, you usually must sue within the time limit of 1 year from when the material was communicated.
When taking a legal pathway, it is important to know that legal action can be very expensive, complicated, and involve unforeseen consequences. If you think you have been defamed, you should see a lawyer.

In the wake of the scandal, Paula and school staff ask Dan to delete the posts, which continue to gain traction. Enjoying his new social media stardom, Dan refuses, saying he is an adult now and they can’t tell him what to do.

Paula speaks to her lawyer. Thankfully, it has been less than a year so she can bring proceedings in court. Paula seeks an injunction, which will force Dan to delete the post and stop him from posting in the future, and damages to compensate her.


 
If you successfully sue someone for defamation, the court may award you money (as damages) to compensate you for damage to your reputation, your hurt feelings, and any economic loss you have suffered. The court may also stop the person who defamed you from publishing defamatory material about you in the future (which is called an injunction).

What can I do if I think I have defamed someone?

You may have defamed someone if you have communicated something defamatory about them to another person. If you think you have defamed someone, you should apologise to the person you defamed and take the material down.
If the person you defamed wishes to sue you for defamation, or sends you a legal notice asking you to take down the material and apologise, you should see a lawyer for advice.

Dan is outraged upon learning of the proceedings and immediately engages his parents’ lawyer. He initially relies on the truth defence, which fails due to lack of evidence. Dan then falls back on the triviality defence, arguing that the posts were simply a joke on his personal Facebook account which were unlikely to cause any harm.


 Dan loses the case and is ordered to pay compensatory and aggravated damages. The judgement emphasises that social media is inherently a public medium, which allows the free flow of information between users. 


 If you have defamed someone, you may be able to defend yourself from being sued. There are a number of ways to defend yourself, such as justification, honest opinion and triviality.
  1. Justification is where the defamatory material is substantially true. However, you shouldn’t say something is true when it isn’t, as that can lead to worse consequences.

  2. Consent is where the defamed person agreed to the material being communicated. However, the subject must have clearly and unequivocally consented to substantially the same material as that communicated.

  3.  Honest opinion

    This defence protects you if you are being sued over an opinion you honestly hold. You must show that your statement is genuinely an opinion (rather than a statement of fact), that your opinion is based on facts referred to and that it is about a matter of public interest (including something placed up for public criticism such as a movie or a restaurant).   For example, if you publish a disparaging review of a café on Facebook and are then sued, you may be able to rely on this defence.

  4. Qualified privilege

    If you make a defamatory statement to someone who has a legitimate interest in the information, you may be protected from being sued for defamation (provided you have acted reasonably).   One example of this is if you report someone to the police. Even if your allegations are false, you cannot be sued for defamation as long as you honestly believed them. However you will not be protected if you repeat the allegations to other people – this would be considered unreasonable, because the only people who have an interest in investigating crime are the police.

    Similarly, if you are asked to provide an employment reference for someone and you write something unflattering, they cannot sue you because their prospective employer has an interest in knowing about their behaviour. On the other hand, if you post a Facebook status repeating the information, you won’t be protected because your Facebook friends are unlikely to have a legitimate interest in receiving the information.

  5. Triviality is where the defamatory material is unlikely to cause the defamed person any harm. For example, there may be a defence of triviality when the defamatory material is only communicated to a small number of people.


NCYLC would like to express thanks to the law clerks and volunteers who assisted with the preparation of this material: Jack Evans, Ricky Melamdowitz, Claudia Sheridan, Jovana Zelenbaba.


This page was last updated in January 2017.