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.

Defamation (NSW)


Defamation occurs when a party publishes (either orally or in writing) something about another party that is untrue and that is harmful to their reputation.  Historically defamation was governed by the common law. There were two different types of defamation – slander and libel. Slander was when a party defamed another party orally, and libel was when a party defamed another in writing. However, there is no longer a distinction between these two forms of defamation and the law in New South Wales governing defamation is covered by the Defamation Act 2005.

Generally, to successfully bring a claim for defamation, a party must prove the following:

  1. That something was published either orally or in writing;
  2. That an ordinary person would consider the material that was published to be defamatory;
  3. The person claiming defamation can be identified in the material that was published; and
  4. That there is no legal excuse for the publication of the defamatory material.

Who can claim for defamation?

Not all people or organisations can claim for defamation. A claim can be made by an individual person, an organisation that does not seek profit or a company with less than ten employees.

A person who has passed away cannot have a claim for defamation brought on their behalf.

Who can be the subject of a claim for defamation?

Defamation claims can be brought against large companies, associations that are incorporated, bodies of government and individuals. More than one person or entity can be sued for the same publication, e.g. a journalist and the publication for whom he or she works.

A person who has passed away cannot have a claim in defamation brought against them.

Loss and damages

When awarding damages for loss suffered as a result of a defamatory publication, a court will aim to restore the claimant to the position they would have been in had there been no publication.

There are two types of loss for which a party can claim. These are economic loss and non-economic loss. Economic loss includes things such as a loss of income caused by the publication of the defamatory material. Non-economic loss is a loss for things that are non-monetary such as pain and suffering or mental anguish caused by the publication. The amount of damages that can be claimed for non-economic loss is limited by the Defamation Act 2005 to $250,000.

Offers to make amends and apologies

An alternative path to resolution of a dispute about defamation is for the aggrieved party to ask the publisher of the defamatory material to make amends for the publication. The Defamation Act 2005 provides a process for this. The person who is aggrieved by a publication can send a “concerns notice” to the publisher of the material. The publisher then has 28 days to respond to this notice with an offer to make amends. This should include an offer to publish a correction and to pay for expenses incurred by the aggrieved party. It may also include an offer to pay the aggrieved person a further amount or an apology.

An apology, if made, is not to be taken as evidence of liability.

Defences

There are several defences available where a defamation action is brought. These include:

  • Justification – there is substantial truth in the published material;
  • Contextual truth – no harm was caused by the defamatory material when taken in the context of the whole publication;
  • Absolute privilege – the publication was made in parliament or an Australian court or tribunal;
  • Publication in public documents – the relevant material had been published in a public document such as a court judgement or report of a parliamentary body;
  • Fair reporting on proceedings of public concern – the published material was contained in a proceeding such as a proceeding of a parliamentary body, international conference or international organisation;
  • Qualified privilege – the published material was given to a recipient in a situation where the recipient was interested in the topic about which it related, the publisher was providing information about the topic of interest to the recipient, and the publisher’s conduct was reasonable in the circumstances;
  • Honest opinion – the publication was an opinion about a matter of public interest and was based on proper material;
  • Innocent dissemination – the publisher was acting for another publisher or distributor and did not know the material was defamatory but was not negligent in not knowing; and
  • Triviality – the aggrieved person was unlikely to have suffered harm as a result of the publication

Limitation periods for defamation actions

The Limitation Act 1969 provides that a claim for defamation must be made within one year of date of publication of the defamatory material. However, in some circumstances, this limit may be extended if it was not reasonable for the plaintiff to have commenced an action within one year.

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