Who can sue for defamation?
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Any person who is the subject of a defamatory publication can sue for defamation. However, section 9 of the Defamation Act significantly restricts the rights of corporations to sue for defamation. The only corporations that can bring a defamation claim are businesses that have less than 10 employees and not-for-profit organisations.
It is not necessary for the plaintiff (i.e. the person who claims to have been defamed) to be identified by name in the defamatory publication. It is sufficient to show that a reasonable person reading the words understands them as referring to the plaintiff.
Claiming that the defamatory material was not intended to refer to the plaintiff is not a defence, nor can it be claimed that the reference to the plaintiff is ambiguous. In one case, two people of the same name successfully sued in relation to the same defamatory publication.
A publication that refers to a group of people (rather than named individuals) only defames members of the group if a reasonable person regards it as referring to every single member of the group. For example, the statement, ‘All lawyers are dishonest’, is not defamatory of any particular lawyer because a reasonable person would not think that the statement means that every single lawyer in Australia is dishonest. On the other hand, the statement, ‘Slow & Bideawhile is a dishonest firm of solicitors’, could well be regarded as meaning that every solicitor employed by Slow & Bideawhile is dishonest. In that case, each of them could sue.
A government body (e.g. a government department or local council) cannot sue for defamation in relation to a statement that comments on the way it carries out its public functions. However, an individual politician, public servant or local councillor can sue if a statement refers to the way in which they personally carry out public functions.
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A plaintiff can only sue for defamation after they have complied with the ‘concerns notice procedure’ in Part 3 of the Defamation Act. In particular, they must send a ‘concerns notice’ to the alleged publisher before commencing proceedings (Defamation Act s 12B). The requirements of a valid concerns notice are set out in section 12A of the Defamation Act.
Once the concerns notice is provided to the alleged publisher, the plaintiff must wait the ‘applicable period’ for the alleged publisher to make an offer to make amends. This is 28 days in most cases (Defamation Act s 14(2)). If the parties have not resolved the dispute after the applicable period has passed, the plaintiff can commence court proceedings.
Who can sue for defamation?
Chapter: 11.2: Defamation and your rights
Contributor: Liz Main, Barrister
Current as of: 1 October 2024
Law Handbook Page: 916
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