Defamation is an area of civil law known as tort law. Torts are civil wrongs that cause a person to suffer loss or harm. A person affected by the tort of another can sue for compensation or seek an injunction to stop the behaviour that amounts to a tort from continuing or recurring. The tort of defamation developed under British law, where it was dealt with either as slander or libel. Slander was defamation in a verbal context while libel was defamation in a written publication.
In Queensland, the distinction between libel and slander was abolished with the passage of the Defamation Act in 2005. This legislation was enacted uniformly across Australia’s states and territories. In Queensland, it replaced the Defamation Act 1889.
The uniform legislation to ensure defamation laws across the country would promote quick and non-litigious ways of resolving disputes relating to defamation, and provide effective and fair remedies, without unreasonably limiting freedom of expression.
What is defamation?
The law on defamation is now largely uniform across all Australian jurisdictions. Defamation is the publication of unsubstantiated ‘facts’ where this negatively impacts the reputation of an individual (known as the ‘aggrieved’ or ‘the claimant’). A defamation action aims to correct public perceptions and compensate the aggrieved for the harm caused.
The Defamation Act defines ‘publication’ to include:
- online media
The ‘publisher’ is the person who made the statement that is alleged to have been defamatory.
With the amount of information published online, especially through social media, the law of defamation has become increasingly relevant. The Defamation Act is also frequently criticised for being outdated as it was passed when Facebook was only a year old and Twitter did not yet exist.
The Commonwealth Broadcasting Services Act 1992 limits the liability of internet content hosts and internet service providers, to the extent they are unaware of the truth or otherwise of the content published on their platforms. However, he publication online of any defamatory content, including providing links to defamatory content or emailing defamatory content to others, can create liability.
Bringing a claim of defamation in Queensland
The limitation period for bringing a claim of defamation in Queensland is one year. However, an aggrieved person can petition to extend the limitation period to three years in extraordinary situations.
A defamation claim cannot be made against a deceased person. A claim can be made by a corporation but not by a profit-driven corporation with more than ten employees.
If a defamatory statement is published only in Queensland, then Queensland’s Defamation Act applies. Where a statement is published in Queensland as well as in other jurisdictions, Queensland’s Act may not apply as the applicable law will be the jurisdiction most closely connected to the harm.
Elements of a defamation claim
Defamation in Queensland is comprised of the following elements.
- communication or publication – this includes all types of communications media, including print and speech.
- to any third party – the communication does not necessarily have to be made to the public, but it must be made to someone else other than the claimant.
- of a defamatory matter – a defamatory matter may be an untruth or a false representation, which is called an imputation. A publication is defamatory if a person’s reputation has been damaged or could reasonably be considered to be at risk of being damaged by the defamatory content.
- about, concerning or identifying a person – untrue statements or imputations that do not identify a person will not create a cause of action for defamation.
- without lawful excuse – if all the above elements have been met, but there is a lawful excuse for the publication then the defamation claim will not succeed.
There are many defences to defamation under Queensland’s Defamation Act. These include:
- justification – where the published statement was substantially true;
- contextual truth – the published statement made imputations that were substantially true so the aggrieved could not have been harmed;
- absolute privilege – where the statement was made during parliamentary debates, or in court or tribunal and was privileged and immune to defamation claims;
- public document –where the statement was also contained in a public document, meaning a parliamentary debate, court or tribunal judgment, or other governmental publication;
- fair report – the statement was made during the course of, or previously contained in any fair report of, a proceeding of public concern;
- qualified privilege – publication of the statement was obligatory for a legal, social or moral reason (but there are limits on where this defence applies);
- honest opinion – the statement was opinion and not fact;
- innocent dissemination – the distributor of the publication did not have control over its content;
- triviality – the aggrieved is unlikely to sustain harm or loss.
A publisher’s apology may be taken as evidence to mitigate damages, but not as evidence of any fault or liability.
Offers to make amends
If an individual is notified that an aggrieved is taking legal action against them for defamation, they have 28 days to make an offer of amends to the aggrieved. An offer of amends is a statutorily prescribed means which can satisfy the dual purposes of a defamation action – to correct public perceptions and to compensate the aggrieved for the harm or loss caused.
An offer of amends must contain a correction to the publication and an offer to pay the costs incurred by the aggrieved. If two people have published the statement, an offer of amends from of one them does not affect the liability of the other.
When a publisher makes an offer of amends that is reasonable, the aggrieved party is encouraged to accept it. If the aggrieved does not accept the offer, the publisher then has a defence against the defamation claim.
Like apologies, offers to make amends cannot be taken as evidence of liability in defamation proceedings.
Maximum amount of damages
Queensland’s Defamation Act caps the amount that can be claimed for non-economic damages at $200,000, but this amount has been increased regularly in line with inflation through decisions of the courts. The current maximum amount that can be claimed for non-economic damages is $389,500.
There is no limit on the amount that can be claimed for economic damages.
Criminal defamation in Queensland
Defamation in Queensland can also give rise to a criminal charge. Under the criminal law, defamation is a misdemeanour. Criminal proceedings for defamation may be initiated where a person has made a defamatory statement knowing it was false or having no regard as to its truth or falsity at the time of publication, and where the publisher intended to cause serious harm to the aggrieved.
The penalty for publication of malicious defamatory content in Queensland is a fine of an amount the court determines and/or imprisonment for up to three years.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.