Defamation (ACT)

Defamation is where a person or entity publishes material about another person or entity that harms them in some way. Material may be defamatory if it could injure a person’s reputation or cause people to shun or avoid a person. The Civil Law Wrongs Act (2002) governs the law of defamation in the Australian Capital Territory. There are some situations where defamation is a criminal offence. This article only concerns those situations where a person or entity could take civil action.

Who can make a defamation claim?

Individuals, non-profit organisations and small companies with less than ten employees can sue for defamation. Generally, large companies cannot bring claims for defamation. A person or entity cannot take action for defamation on behalf of a deceased person.

Who can be sued for defamation?

A person or entity can take action for defamation against corporations, incorporated associations, government bodies and individuals. A person or entity can sue more than one party for defamation. For example, a corporation and one of its employees could both be sued for publishing defamatory material. A person or entity cannot sue a deceased person for defamation.

What needs to be proven?

Generally, the elements for a successful claim of defamation are:

1. Publication. The defamatory statement has been published to a third party. The publication can be written or oral publication;
2. Defamatory matter. An ordinary person would take the meaning of the material to be defamatory;
3. Identification. The person claiming defamation must be able to be identified through the publication. They do not have to be specifically named, but a reasonable person who is familiar with the relevant circumstances must be able to identify them.
4. No lawful excuse. There must not be a lawful excuse for the publication (defences to defamation are considered further below).
5. The publication causes, or is likely to cause, serious harm to the person’s reputation. The ‘serious harm’ element of a defamation claim was introduced in the ACT in 2022 and is contained in section 122A of the Civil Wrongs Act 2002.

Offer to make amends

The Act provides a process for giving the party who published the defamatory material the opportunity to “make amends” for the damage caused. An aggrieved person may send a “concerns notice” to the publisher outlining why they feel they have been defamed. The publisher can respond to this within 28 days with an outline of how they intend to make amends for the offending publication. The publisher can also ask for further particulars where the concerns notice is unclear. An offer to make amends must include an offer to publish a correction and pay for certain expenses incurred by the aggrieved person. It can include an offer to pay further amounts to the aggrieved person.

An offer to make amends can no longer be made once 28 days have elapsed since the concerns notice has been issued. Also, an offer to make amends cannot be made once a publisher has filed a defence against a claim brought by an aggrieved person.

Apologies

According to the Act, apologies, if made by a person who publishes defamatory material, are not to be taken as evidence of liability, if the matter later proceeds to court.

Defences to defamation

There are several possible defences to defamation.

These include:

• The defence of justification – the material published is substantially true;
• The defence of contextual truth – the defamatory material contained other imputations or material. Due to this other material, no harm was caused by the defamatory material;
• The defence of absolute privilege – the publication was in a forum such as a parliamentary body or Australian court or tribunal;
• The defence of publication of public documents – the published material had appeared on a public document, such as a parliamentary report, or judgment of a court or tribunal;
• The defence of fair report of proceedings of public concern – the defamatory material had been published in proceedings of public concern, such as a proceeding of a parliamentary body, international conference or international organisation;
• The defence of qualified privilege for provision of certain information – the material was published in the context where the recipient had an interest or apparent interest in information, the material was published in the context of giving information to the recipient, and the publisher’s conduct was reasonable in the circumstances;
• Defence of honest opinion – the material was an opinion rather than a statement of fact, the opinion related to a matter of public interest and the opinion was based on proper material;
• Defence of innocent dissemination – the publisher was acting as an employee or agent of another distributor, the publisher did not know should not have reasonably known that the matter was defamatory and the publisher’s lack of knowledge was not due to negligence;
• Defence of triviality – where the publisher can show that the aggrieved person is unlikely to have sustained any harm due to the publication.

Damages

Damages for defamation are to put you in the same position you would have been in if there had been no publication of defamatory material. An aggrieved person can make claims for both economic loss, e.g. loss of income, and non-economic loss, e.g. pain and suffering. There is a cap on the amount of damages that an aggrieved person can claim for non-economic loss.

Limitation of actions

According to the Limitation Act 1985, you will generally have one year from the date of publication to bring an action of defamation. However, in some circumstances, you will be able to extend this to up to three years if you can satisfy the court that it was not reasonable in the circumstances to have brought the action within one year.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal