Defamation in NSW has been publicly discussed following high-profile cases such as Johnny Depp versus Amber Heard and Barilaro v Shanks-Markovina & Google.

But what is defamation in NSW? Generally, defamation occurs when one person says or writes something about another that negatively affects the reputation of the other. The statement spoken or written is often not true, or it is unsubstantiated.

In NSW, there is criminal defamation and civil defamation. An offender may face monetary penalties in civil proceedings. However, if there is criminal defamation, an offender can face imprisonment for defamation in NSW.

The Defamation Act 2005 and the Crimes Act 1900 govern the law on civil and criminal defamation in NSW, respectively. This article discusses legal matters pertaining to defamation NSW.

What is Defamation NSW?

Defamation occurs when a party publishes (either orally or in writing) something about another party that is untrue and harmful to their reputation.

Previously, there were two different types of defamation - slander and libel. Slander was oral defamation, while libel was defamation in writing. However, the Section 7 under the Defamation Act 2005 abolished the distinction between these two forms of defamation.

Defamation occurs in the form of a newspaper article, photographs, artworks, material over the internet, or it could simply be words that defame a personal orally without a written record.

What Is "Defamatory"?

Section 529 (11) of the Crimes Act 1900 provides that the definition of "defamatory" is the same as that in the Defamation Act 2005, which is where the material in question:

  1. Was published or communicated in any way to at least one other person other than the person who was allegedly defamed,
  2. Identified the person allegedly defamed, whether directly or indirectly, and
  3. Had a defamatory meaning, meaning it was likely to:
  • cause others to shun, shame or avoid the person,
  • adversely affect the reputation of the person, or
  • damage the person's professional reputation by suggesting a lack of qualifications, skills, knowledge, capacity, judgement or efficiency in the person's trade, business or profession.

Proof for Defamation Claim

Generally, to successfully bring a claim for defamation in NSW, a party must prove the following:

  1. A person published something defamatory about a living person either orally or in writing,
  2. An ordinary person would consider the published material to be defamatory,
  3. The person claiming defamation is easily identifiable in the published material,
  4. The person intended to cause serious harm to that person or to any other person or were reckless as to whether serious harm would be caused, and
  5. There was no legal excuse for the publication of the defamatory material.

Defences Against Defamation Charges

Section 529 (4) of the Crimes Act provides that a defendant has a lawful excuse for the publication of defamatory matter "if, and only if, the defendant would, having regard only to the circumstances happening before or at the time of the publication, have had a defence for the publication if the victim had brought civil proceedings for defamation against the defendant."

Such defences to the publication of defamatory material in civil proceedings provided under the Defamation Act 2005 include:

  • Justification - there is substantial truth in the published material (Section 25),
  • Contextual truth - the party caused no harm by the defamatory material when taken in the context of the whole publication (Section 26),
  • Absolute privilege - the parliament or an Australian court or or arbitral tribunal made the (Section 27),
  • Publication in public documents - the relevant material was in a public document such as a court judgement or report of a parliamentary body (Section 28),
  • Fair reporting on proceedings of public concern - the published material was in a proceeding of a parliamentary body, international conference or international organisation (Section 29),
  • Qualified privilege - the published material was given to a recipient in a situation where the recipient was interested in the topic about which it related, the publisher was providing information about the topic of interest to the recipient, and the publisher's conduct was reasonable in the circumstances (Section 30),
  • Honest opinion - the publication was an expression of opinion rather than statement of fact, and the opinion related to a matter of public interest and was based on proper material (Section 31), and
  • Innocent dissemination - the publisher was acting for another publisher or distributor and did not know the material was defamatory, but was not negligent in not knowing (Section 32).

Parties in a Claim for Defamation

Under the Defamation Act 2005, not all people or organisations can claim for defamation. An individual person, an organisation that does not seek profit, or a company with less than ten employees can make a claim. In addition, a person who has passed away cannot have a claim for defamation brought on their behalf.

Parties can bring defamation claims against large companies, corporations, bodies of government, and individuals. More than one person or entity can be sued for the same publication (such as a journalist and the publication for whom they work). In addition, a person who has passed away cannot have a claim in defamation brought against them.

Under the Crimes Act 1900, a person who, without lawful excuse, publishes defamatory matter of another living person, will be guilty of an offence.

Penalties and Loss and Damages

In civil defamation, a party can claim economic loss (such as loss of income) or non-economic loss (non-monetary claims such as pain or mental anguish caused by the publication). The amount of damages for non-economic loss has a limit of $250,000 under Section 35 of the Defamation Act 2005.

For criminal defamation, under Section 529 (3) of the Crimes Act 1900, a maximum penalty of three years' imprisonment can be imposed to a person who committed the offence.

Avoiding Court: Offers to Make Amends and Apologies

Under the Defamation Act 2005, an alternative path to resolution of a dispute about defamation is for the aggrieved party to ask the publisher of the defamatory material to make amends for the publication.

The aggrieved party can send a "concerns notice" to the publisher of the material. The publisher has 28 days to respond to this notice with an offer to make amends. This should include an offer to publish a correction, pay for expenses incurred by the aggrieved party, or an apology.

Under Section 20 of the Defamation Act 2005, an apology may not necessarily be an evidence of liability.

Limitations on Defamation NSW Claims

Section 14B of the Limitation Act 1969 provides that a party must make a defamation claim within one year of date of publication of the defamatory material. However, if circumstances permit, there can be an extension of this limit if it was not reasonable for the plaintiff to have commenced an action within one year.

In addition, Section 529 (7) of the Crimes Act provides that a party can bring defamation proceedings only with the consent of the NSW Director of Public Prosecutions.

The Importance of Seeking Legal Advice

Defamatory statements cause mental anguish and emotional stress. You may be in a situation where a person published something about you that negatively affected your reputation.

JB Solicitors has a leading team of experienced lawyers that can help you. We offer legal services such as legal representation and legal advice suited to your needs. We ensure that we address all legal concerns of our clients.

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.