Remedies for defamation

1 Feb

Written By For Good Digital

Two types of monetary damages are available for a plaintiff (i.e. the person who claims to have been defamed) in defamation cases.
1. ‘General compensatory damages’ are intended to compensate the plaintiff for damage to their reputation. In the case of a person (but not a company), compensatory damages include compensation for hurt feelings. The Defamation Act imposes a limit on general compensatory damages of $478500 from 1 July 2024.
2. ‘Aggravated compensatory damages’ are intended to compensate the plaintiff when the defendant has acted in an improper or unjustified way, and this has increased the injury to the plaintiff’s reputation or feelings. Examples of improper/unjustified actions include failing to check the truth of material before publishing it, refusing to apologise, and repeating the defamatory statement after the plaintiff has complained.
Exemplary damages (i.e. damages designed to punish the defendant rather than compensate the plaintiff) cannot be awarded to plaintiffs in cases to which the Defamation Act applies.
Damages can be mitigated (reduced or kept to a minimum) by the defendant apologising or publishing a correction before the case goes to court. A defendant may also use a plaintiff’s bad reputation in the community to try to mitigate the damages awarded against them. However, this has strict limitations. The alleged ‘bad reputation’ must be in the same sphere or zone of reputation as the imputations complained of by the plaintiff. For example, if a plaintiff complains that the imputation is one of dishonesty, the plaintiff’s reputation as a bad driver is not in the same sphere.
In addition, examples of specific bad acts committed by the plaintiff are not sufficient evidence of the plaintiff having a bad reputation. Rather, the defendant’s case must include evidence from witnesses who can say what the plaintiff’s reputation is in the community. It is the plaintiff’s reputation (not their specific prior conduct) that is in question. One of the limited exceptions to this rule is evidence of prior criminal convictions. This may be relied on by a defendant on the basis that a person’s criminal record forms the building blocks of their reputation.
Often, a person who believes they have been defamed will threaten to seek a court injunction forbidding the publication, or continued publication, of the offending statement (prior to the final hearing of a legal action for defamation). Such injunctions are very rarely granted if the defendant claims the statement is true or that there is another good defence. To grant an injunction, a court needs to be convinced that the defendant has no realistic prospect of success. This reflects the importance the courts place on free speech.
As of 11 September 2024, a court may order an injunction that a digital intermediary (defined in section 4 of the Defamation Act, such as internet search engines, social media platforms and administrators of social media pages or websites) remove the publication, even if the digital intermediary is not a party in the court case (Defamation Act s 39A).