What is defamation Law?
A defamatory statement is a false statement that is published (i.e. in written form) that would lead a reader to view the complainant in a negative light.
A false statement about a person that is published and brings them into disrepute is widely referred to as being ‘defamatory’. However, to prove that a written statement is defamatory under Australian law requires the complainant to prove all of the ‘elements’.
Elements of defamation
Defamation law is set out in each State and Territory legislation. Each defamation law has its own requirements, however, they largely follow the same general principles.
The elements required to prove a claim for defamation in Australia are:
- The statement must convey a defamatory imputation
A person must prove that the words published would make others (i.e. an ordinary reasonable reader) think less, shun, or avoid the individual.
The relevant standard of “the ordinary reasonable reader” recognises that such a reader may draw inferences from defamatory material.
The courts have held that the intention of the author is not relevant to whether the statement is defamatory. The fact that comments are defamatory in nature is enough to satisfy this element.
- A reference to a defamed person can be:
a. direct – by naming the person; or
b. indirect – by referring to the person (other than by naming them) and in such a way that a person would understand the person as being the one referred to in the publication.
If a person is named in the defamatory material, that person is not obliged to call evidence (source: ConsolidatedTrust Co Ltd v Browne [1948] NSWStRp 71; (1948) 49 SR (NSW) 86 at 90-91 per Jordan CJ).
- The statement has been published to at least one person, other than the defamed person or writer
A complainant must prove that the material was published to at least one other person, apart from the person or business that wrote or published the material, or to themselves.
Time limitations
A defamed person has 12 months to commence court proceedings.
You should seek urgent legal advice if the 12-month time limit is about to expire or has already expired.
Publishers who post on the internet must exercise greater care than print media publishers. This is because the one-year time limitation period is reset, and the clock starts again each day the material is available for download.
Recent Australian case law: $35,000 in damages for single defamatory Facebook post
Our habitual use of social media has led users to face various legal battles.
The case of Goldberg v Voigt [2020] NSWDC 174 explores an incident where a Sydney man, Bruce Goldberg (Mr Goldberg), was awarded $35,000 in damages after the District Court of New South Wales found that he was defamed by a single post made by Alice Voigt (Ms Voigt) on the “Rose Bay Community – Original and Official Group Facebook Page”.
Facts
On 16 November 2018, Ms Voigt made a Facebook post on a Rose Bay Community Group page claiming Mr Goldberg “intimidated, bullied and threatened women”. Ms Voight continued with stating that “he [Mr Goldberg] finds where you live… he hand delivers mail to your house” and claimed that “it’s not slander if it’s true”. Ms Voigt also stated that “too many women have been killed by stalkers and unstable people to let this sort of stuff scare us”.
Within a day of the first post, Ms Voight wrote further posts which were also found defamatory.
Mr Goldberg filed a Statement of Claim, which was served on 7 March 2019. In her defence, Ms Voigt admitted to uploading the post but asserted she removed the post on receipt of the Statement of Claim.
Findings
The Court found that Ms Voigt’s posts were defamatory in many respects. Pursuant to section 34 of the Defamation Act 2005 (NSW), the court must ensure that there is “an appropriate relationship between the harm sustained by the plaintiff and the amount of damages awarded”. in a Sydney community Facebook group.
Mr Goldberg said that he felt “shocked” and “speechless” when he read the post and that his reputation had been damaged. Although the Court found that the audience of the post was on a lower scale, the Court held that “slight” aggravated damages should be awarded on the basis that subsequent posts were made by Ms Voigt.
How compensation is calculated
The amount of compensation awarded for defamation depends on the circumstances of each case. There is no fixed formula or a way that courts calculate defamation damages.
In Australia, damages can sometimes be a small amount or sometimes in millions of dollars.
If you are considering a claim for defamation, or you need to defend a claim, you should consider that court proceedings are usually expensive. You must seek legal advice about the likely legal costs before initiating a defamation claim.
Sources
Take action quickly
If you or your business use social media, be conscious of any responses to complaints made through that platform and the way your posts may be received. You and your business do not have to put up with defamatory statements made on social media – contact us and take action quickly. Our Associate, Jennifer Franco can assist you with your enquiries. Jennifer can be contacted on 0420 411 881 or jfranco@cp-legal.com.au.
