Defamation, Civil and Criminal: The limits of what you can say.

We’re generally free to say what we want, but there are limitations to free speech that cover a wide range of issues important to society. Defamation laws protect people and organisations from abuses of free speech.

What is it?

Defamation is a civil action allowing parties to seek compensation for damages against a person’s reputation that negatively impacts on how people see you as a person. 

What counts as defamatory?

Defamatory comments must meet three requirements: publication, identification and defamatory matter.

  • Publication requires the information be communicated to a third person by the defendant.
  • Defamatory matter requires the information to be a false representation  or an untruth that damages or could damage the person or entities’ reputation.
  • Identification requires that the damaging comments identify you or your organisation. This can be constructive, meaning if the publication doesn’t name you but clearly refers to you through descriptions or events in a way which specifically identifies you or your business.
  • No valid defence, where the elements are met but there is a lawful excuse then there will be no defamation.

What counts as a publication?

Whilst the general understanding of publication is that of text on paper or a digital source, publication in defamation law is far wider reaching and takes in a broad scope of sources. Publications are often accepted to include any means of communicating to a third party. This includes articles, posters, letters, conversations, emails, instant messenger services (Facebook Messenger, WhatsApp), paintings, statues, cartoons, drawings, graffiti, songs, Facebook, Twitter, Instagram, and product reviews and other forums. This also applies to republication – meaning action can also be brought against people repeating the initial publication, including sharing it on the internet. 

Defences to Defamation: 

Defamation comes with a variety of defences to ensure free expression is not unreasonably limited. The most common defences include:

  • That the publication was harmful, but true.
  • That the harmful publication was an honest opinion.
  • That it was unlikely that the person would sustain damage to their reputation.
  • That the publication was of an issue of concern to the public.
  • Statutory protection –laws specifically exempting certain statements. This is limited to parliamentary debate (but not all statements made by politicians) and for judgements laid down by tribunals and courts. 

Large corporations and government agencies are limited under law from being defamed. Comments made by people against large businesses such as banks, mines and supermarket chains are protected from defamation, though comments about a specific employee may still be applicable. Defamation against deceased persons are also not covered under the law.

Legal Advice

Defamation matters are complicated. It’s important to seek legal advice as soon as possible 

At Cohen Legal, we believe in a holistic approach to providing legal services focused on the best commercial outcome for clients.  Contact us to discuss your options today.

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