Madgwicks is proud to present the Mandarin Guide to Defamation in Australia.
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.
For an act to be considered defamation it must satisfy the following three requirements:
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.
The publication must identify the person allegedly defamed (plaintiff)
The person allegedly being defamed can be identified even if they are not named.
The publication is defamatory
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:
The person's reputation is lowered in the eyes of the general public.
The publication results in the public avoiding the person.
The publication results in the public forming an adverse view of the person.
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
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
The defamatory statement/publication is based on honest opinion or is a fair comment.
- 绝对特权 Absolute privilege
The publication is made in the context of a parliamentary debate or a court judgment.
- 限制特权 Qualified privilege
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
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.
Two things to note:
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.
A corporation cannot be a plaintiff to an action in defamation where it has more than 10 employees.
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!
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.