If you find that you’ve been defamed online, it is hard to know what the immediate implications are.
The law of defamation is designed to offer protection to an individual’s reputation. In South Australia, the Defamation Act 2005 (SA) provides the general law relating to the tort (civil wrong) of defamation. The law of defamation operates irrespective of whether the defamatory material was posted online or whether it was said in front of people.
Please consider the following as to whether you have been defamed.
What is defamation?
Defamation is the publication of false and derogatory statements about another person, without any justification recognised by law.
Have I been defamed?
For a successful claim of defamation, the following elements must be satisfied:
- The material bore a defamatory meaning; and
- The material identified you as the object of the defamatory meaning; and
- The material was published (communicated to at least one other party).
“Defamatory meaning” – a matter may be defamatory if it disparages the plaintiff, causes them to be ‘shunned or avoided’ or exposes them to a more than trivial degree of ridicule. It is not necessary that the matter lower the plaintiff in the estimation of society as a whole. It is sufficient that it would do so in respect of a respectable segment of the community.
NOTE: Make sure you screenshot or keep a record the defamatory material.
The first step after identifying defamatory material is to contact the publisher directly. You should clearly explain what material you consider defamatory and why you consider it defamatory. We advise that you do not use this as an opportunity to berate the publisher or to vent your frustrations. It will be more beneficial if you approach this correspondence in a conciliatory manner.
If the publisher refuses to remove the material, you can contact the social media providers directly. For example, Facebook has a Defamation Reporting Form which can be utilised.
You also have the option to provide the publisher with notice for an offer to make amends. If the publisher of the material receives written notice from you claiming to have been defamed, the publisher can make an “offer to make amends”. The offer must include publishing a reasonable correction and paying expenses incurred by the person defamed. This offer may also include an apology. The offer must be made within 28 days of receiving the notice and if the notice is accepted, that is the end of the matter.
If the above approach fails and you have established that you have been defamed, legal proceedings can be instituted. Please contact our office for further guidance.
Please note, proceedings must be commenced within 1 year of the defamatory material being posted (s 37 Limitation of Actions Act 1936 (SA)).
There are, however, defences to a claim of defamation. These include:
Defence of Justification – If the publisher proves that the material is substantially true.
Defence of absolute privilege – Publisher can demonstrate that they published the content in the course of proceedings that attract absolute privilege, including:
- Parliamentary bodies
- Australian Courts or Tribunals
- The Ombudsman
- The Privacy or Information Commissioner
- The Law Reform Commission or
- Certain legislation such as the Workers Compensation Act or Motor Vehicle Act.
Defence for publication of public documents – Proof that the defamatory material was part of a public document.
Defences of fair report of proceedings of public concern – Proof that the material was or was part of, any report on proceedings publicly held in a parliament, court, tribunal, government body or before the Ombudsman.
Honest opinion – if the publisher can prove:
- Material was an expression of their own;
- Opinion was related to a matter of public interest;
- Opinion was based on material that is substantially true or privileged.
Triviality – Publisher can prove that the material was unlikely to cause harm.