What is defamation?

1 Feb

Written By For Good Digital

Defamation law deals with protecting reputations. Defamation law gives a person whose reputation has been seriously harmed the right to take legal action against those responsible for the harm.
The option of taking legal action is only available if:
- the material was ‘published’ (e.g. written, spoken, illustrated or posted on the internet) to at least one person who is not the plaintiff;
- the material identified the plaintiff (the person who claims to have been defamed) directly or indirectly;
- the material was ‘defamatory’ of the plaintiff; and
- the material has caused, or is likely to cause, serious harm to the plaintiff’s reputation (‘serious harm’).
If all the above elements are established, the defendant must try and establish that they have a defence to the plaintiff’s claim.
In Victoria, the law of defamation comprises both the Defamation Act 2005 (Vic) (‘Defamation Act’) and the common law (decisions made by courts). The Defamation Act is part of a uniform law regime, which means the law is mostly the same in each of Australia’s states and territories.
In Victoria (and some other jurisdictions in Australia), significant changes to the Defamation Act were introduced on 1 July 2021 and 11 September 2024. These changes include the serious harm element, concerns notice requirements, liability of digital intermediaries and protections for police complaints.
Words are defamatory when they convey a meaning (or ‘imputation’) about a person that lowers the person’s reputation in the eyes of reasonable members of the community, or causes the person to be ridiculed, avoided or despised by members of the general public. The meaning of the publication (whether written, spoken or illustrated) as a whole within which the defamatory words exist is central to legal action.
To establish what meanings or imputations are conveyed, the words and/or images contained in the publication must be considered in the context of the entire publication. The publisher’s intention is irrelevant in establishing a publication’s meaning.
The real question is what meaning(s) would an ordinary, reasonable person understand from the publication. A court views the publication through the eyes of this hypothetical ‘ordinary, reasonable person’ to decide what meanings are conveyed. The law recognises that the ‘ordinary, reasonable person’ is a person of average intelligence, who is neither perverse, morbid or suspicious of mind, nor avid for scandal, but who is also not unusually naïve, who engages in a degree of loose thinking, who can and does read between the lines, and who has a capacity for implication that is greater than that of a lawyer.
A defamatory imputation may be the natural and ordinary meaning of a publication (i.e. the meaning an ordinary person would take from the words). A defamatory imputation could also be a special meaning (known as a ‘true innuendo’) understood only by some people who have knowledge of a particular fact or set of facts. For example, the statement, ‘Mr X got married last Sunday’, made to someone who knows nothing about Mr X’s personal life, is not defamatory. However, if the listener knows that Mr X was already married, the statement has a defamatory meaning, because it implies that he has committed bigamy. Where a true innuendo is alleged, the publisher is only liable if the plaintiff, in addition to establishing a defamatory meaning, can show that the material was published to at least one person who knew the relevant facts to understand the special meaning.
A publication is defamatory if an ordinary person reading or hearing the words, without inside knowledge, considers that the publication conveys a meaning that is defamatory. It is not enough for the publisher to point to another possible interpretation that is not defamatory. If ordinary people understand the publication to have a defamatory meaning, an alternative innocent meaning is not a defence.
The element of ‘serious harm’ was introduced to the tort of defamation on 1 July 2021 in section 10A(1) of the Defamation Act. A plaintiff must demonstrate that publication of the defamatory matter has caused, or is likely to cause, serious harm to their reputation. Injury to the plaintiff’s feelings or distress are not relevant to proving this element. What is relevant is the impact on their reputation.
In general, factors that are relevant to the determination of serious harm include but are not limited to:
- the meaning of the words complained of;
- the reputation of the plaintiff before the publication;
- the number of people to whom the matter complained of was published;
- the effect of the publication on those to whom it was published (e.g. whether the allegations were believed);
- the duration of the harm to reputation;
- the consequences for the plaintiff after the publication (e.g. losing their job, friends or customers).
In the case of corporations that can sue for defamation (discussed below), the publication must have caused, or be likely to cause, serious financial loss to the corporation in order to constitute ‘serious harm’ (Defamation Act s 10A(2)).