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Defamation in Australia

When a person defames another, they publish something, either orally or in writing, about that person that is disparaging, untrue and likely to cause harm or tarnish their reputation. Each Australian state and territory has its own defamation legislation that is modelled on the uniform defamation legislation that was created in 2005. The legislation across Australia is substantially the same. However, some states and territories have introduced a requirement that the defamatory publication caused, or was likely to cause, serious harm to the plaintiff’s reputation.

A person or entity who believes they have been defamed may be able to bring an action against the publisher of the defamatory material. The purposes of any damages that are awarded is to place the claimant in the same position in which they would have been had there not been a defamatory publication.

What needs to be proven?

For a defamation action to be successful, the following needs to be proven:

  1. There was a publication either in writing or orally;
  2. An ordinary person would consider the material that was published to be defamatory;
  3. The person who claims defamation can be identified in the material;
  4. There is not a lawful reason or defence for the publication of the material;
  5. The publication caused, or was likely to cause, serious harm to the person’s reputation (in some states and territories).

Who can claim for defamation?

There are limits on who can claim for defamation. Generally, large companies cannot bring claims for defamation. However, small companies, with less than ten employees, can. Individuals and not-for-profit organisations also can bring claims for defamation. An action cannot be brought on behalf of a deceased person.

Who can have an action for defamation taken against them?

Individuals, incorporated associations, large companies, government bodies can be sued for defamation. More than one party can be sued for the same defamatory publication. A person who has died cannot be sued for defamation.

Loss and damages

There are two types of loss for which a party bringing an action can make a claim. These are for economic loss, such as the loss of income, and for non-economic loss, such as for pain and suffering caused by the publication. Claims for non-economic loss are limited by the legislation.

Defences to defamation

There are several defences that are specifically available for an action brought for defamation. These do not limit a defendant’s ability to plead other defences that may be available at law. The defences specifically available for defamation are the following:

  1. Justification – the publication was substantially true
  2. Contextual truth – the publication also contained other material that was substantially true and the due to this, when the whole publication was considered in its entirety, no harm could have come to the claimant
  3. Absolute privilege – the publication was made in a forum, such as a parliamentary body, where any publication made is immune from an action for defamation
  4. Publication of public documents – the defamatory material had been published in a public document, such as a court judgement
  5. Fair reporting on proceedings of public concern – the defamatory material had been published in a proceeding of public concern such as an international conference or organisation or a parliamentary body
  6. Qualified privilege – the defamatory material was published in a situation where the recipient was interested in the topic which was the subject matter of the material, the publisher was providing information on that topic to the recipient, and the publisher acted reasonably in the circumstances
  7. Honest opinion – the defamatory material was an opinion, based on proper material and was about a matter of public interest
  8. Innocent dissemination – the publisher did not know the material was defamatory, this was not due to their negligence, and the publisher was an employee or an agent of a subordinate distributor
  9. Triviality – no harm could have been done to the claimant due to the publication

Offers to make amends and apologies

An alternative path to resolution for a dispute relating to a defamatory publication is for the aggrieved party to seek amends from the publisher. The relevant legislation in different states and territories outlines a process for this.  The aggrieved party can send a concerns notice to the publisher of the defamatory material. Then, the publisher has 28 days in which to respond to this notice. An offer to make amends must include an offer to publish a correction about the defamatory material. The offer to make amends must also include an offer to pay for certain expenses incurred by the aggrieved person. It can contain any further offer to redress the harm done by the defamatory publication such as an offer to make a further payment or to apologise. An apology, if made, cannot be taken as evidence of an admission of liability.

Limitation periods for bringing actions for defamation

Each state and territory has its own legislation which governs the limitations that are placed on actions being brought for civil claims. In general, a defamation action needs to be brought within one year of the date of publication of the defamatory material. However, in some circumstances, a court will extend the limitation period. This is where the court is satisfied that it was not reasonable for the action to be commenced within one year.

For information about defamation laws in Queensland, Victoria, New South Wales, Western Australia and the ACT, see our state-specific articles.

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

Kathryn Sampias

This article was written by Kathryn Sampias

Kathryn Sampias has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Journalism. Kathryn was admitted to practice in 2005 and practised law for more than eight years, working both in private practice (mainly in defence litigation for professional indemnity disputes) and in the public service for the Australian Securities and Investments Commission (ASIC) in enforcement.

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