Australia: I am just saying! – Are you making a defamatory publication? The Mandarin guide to defamation in Australia

Last Updated: 17 May 2019
Article by Catherine Tan

Madgwicks is proud to present the Mandarin Guide to Defamation in Australia.

诽谤听起来很严重,但是我们检视以下周遭,是否会发现其实也许已经观察到一些诽谤行为?其实诽谤案子越来越多,大家也必须当心避免诽谤了他人。

While defamation cases may have once seemed a rare occurrence not often seen, the recent cases involving Australian actors Geoffrey Rush and Rebel Wilson have shone a spotlight on this legal issue. It is therefore important to understand the basic concepts of defamation in Australia to ensure you do not breach the legal requirements.

以下是构成诽谤的要素:

For an act to be considered defamation it must satisfy the following three requirements:

  1. 发表

Publication

发表必须是要传达给第三者(即并非只传达给原告)。发表可以是书面的,也可以是叙述的。书面的发表可以是一篇文章或者一则讯息。叙述可以只对小部分的人的叙述,也可以是对多人的演讲。

The publication, or defamatory statement must be made to another person (that is not the person who is the subject of the publication). A publication can be written or oral. Written publication can be in the form of an article, or as informal as a text message. Oral publication can be made to a small group of people or in the course of a speech to a larger crowd.

  1. 该发表辨认或者针对原告

The publication must identify the person allegedly defamed (plaintiff)

该发表不一定要指名道姓,即使用代号,如果原告可以证明这个代号可以接收到发表的人知道发表指的是他,这个要素就可以成立。

The person allegedly being defamed can be identified even if they are not named.

  1. 该发表具有诽谤性质的传播

The publication is defamatory

法官不会考虑发表者是否有意诽谤。判断发表是否有诽谤性质,首先法院会判定发表的言词里的意思。如果意思不清晰,或者是原告想要提出该发表其实有深层或者隐藏的褒义,原告必须提出证明。一般来说,具有诽谤性质的发表具备其中以下条件:

The publisher's intention is irrelevant. Words are judged in context, either by the standards of a reasonable person in their ordinary use of such words, or with a special meaning (if it is established that some people will understand the special meaning). Generally, a publication is defamatory if any of the following can be established:

在社会思想端正人士眼中, 原告的地位被贬低

The person's reputation is lowered in the eyes of the general public.

发表的内容让群众避开原告

The publication results in the public avoiding the person.

发表的内容让群众厌恶,憎恨或者藐视原告

The publication results in the public forming an adverse view of the person.

一些大众比较常见的抗辩理由为下:

Even if all the requirements above are met and it could be found that a defamatory statement has been made, there are a number of defences. They include:

  • 真实依据 Truth

如果被告的发表是事实,就可以成功推翻诉讼

If the defamatory statement is true, this is a defence against defamation. Truth is the strongest defence.

  • 均衡评论 Fair comment or honest opinion

如果被告的看法有真实依据,或者是一个均衡的评论,既可成功推翻诉讼

The defamatory statement/publication is based on honest opinion or is a fair comment.

  • 绝对特权 Absolute privilege

在以下某些场合可豁免诽谤责任:议员在国会会议的言词,法官在法院听审的时候的言词等

The publication is made in the context of a parliamentary debate or a court judgment.

  • 限制特权 Qualified privilege

某些对事情有义务报导的群众可以以这个理由抗辩。但是一旦被证实发表者怀有恶意,则不能以以此理由抗辩。

A person with a moral or social duty to make the publication does so and acts properly and free of malice.

  • 无辜传播者 Innocent dissemination

无辜传播者,例如:卖书籍的商家不会知道某书籍可能存在诽谤发表。若存在,商家可以以无辜传播者为理由抗辩。

This defence is intended to protect innocent dissemination of publication such as booksellers, newsagents and internet service providers where they may be seen as publishing defamatory publication, without negligence on their part.

注意以下两种情况:

Two things to note:

  • 澳大利亚诽谤法只保护活人。如果往生者被诽谤,财产执行人没有权利通过法院对被告索求任何赔偿

Only a person who is alive is protected by the laws of defamation. An executor of the deceased's estate cannot commence an action in defamation where the deceased is being defamed.

  • 公司(法人)不能成为诽谤受害者,除非全体公司员工不超过十人

A corporation cannot be a plaintiff to an action in defamation where it has more than 10 employees.

你在社交网站上转发的文章,或者文章下的评论,都可以被当作一个发表。请谨慎发言!

Sharing an article with defamatory statements can potentially lead you to become a second publisher. So be mindful of what you are sharing and commenting, especially on social media!

本文章目的仅仅是为大家普及一些基本的法律常识。并不适用于你个个人情况。如果想咨询更多,请联络我。

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Madgwicks is a member of Meritas, one of the world's largest law firm alliances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions