Defamation is the publishing of unsubstantiated information which damages a person’s reputation. It is a tort, which is a civil wrong that causes a person to suffer loss or harm. In Queensland, defamation is covered by the Defamation Act 2005.
To bring a successful claim for defamation, a person must prove:
- Material was published;
- An ordinary person would consider the published material to be defamatory;
- The publication of the material caused serious harm to the person’s reputation;
- The person claiming defamation can be identified in the published material;
- There is no legal defence for the publication of the defamatory material.
Under section 10A of the Defamation Act 2005, the person must prove the publication of the material has caused, or is likely to cause, serious harm to their reputation. “Publication” is a broad concept and includes spoken words, newspaper articles, website content, emails, social media posts, text messages, photographs, cartoons and gestures.
Only an individual person, an organisation that does not seek profit, and a company with fewer than 10 employees can bring a claim for defamation.
Action cannot be taken against the publication of defamatory information about a dead person, or the publication of defamatory information by a person who has died since publishing the information.
A defamation action cannot be started without the issuing to the publisher of a “concerns notice” by the aggrieved person. A concerns notice must specify where the information can be accessed, its defamatory imputations and the harm caused to the person’s reputation. The publisher has 28 days to respond. They can request a “further particulars notice” if the concerns notice fails to provide adequate details. The aggrieved person has 14 days to provide further details. The publisher then has the remaining 14 days to respond.
The limitation period to lodge a defamation claim is one year. The “single publication rule” means the one-year period begins at the date of the first publication. For an electronic publication, this period begins on the date the material is uploaded for access or sent to the recipient.
Offer to make amends
A publisher can offer to make amends to the aggrieved person, related to the concerns generally or limited to certain defamatory imputations. If two or more people published the defamatory information, an offer to make amends by one person does not affect the liability of other person or involved. An offer of amends is taken to have been made without prejudice, which means any communications made in the offer process are not admissible in any later court proceedings.
A publisher has 28 days to make an offer to make amends, and only if they have not lodged a defence to the defamation action.
An offer to make amends must include:
- an offer to publish a reasonable correction or clarification or additional information;
- if the material has been given to someone else by the publisher or with the publisher’s knowledge, an offer to take reasonable steps to tell the other person the material is or may be defamatory;
- an offer to pay expenses incurred by the aggrieved person.
It can also include:
- an offer to publish an apology;
- an offer to remove the material from a website or other location;
- an offer to pay compensation for any economic or non-economic loss, or an amount agreed or determined by a court.
An apology does not constitute and express or implied admission of fault or liability by the publisher.
There is a range of defences available to a claim for defamation. These include:
- justification under section 25 of the Defamation Act 2005 – the imputations in the published material are substantially true;
- contextual truth under section 26 of the Defamation Act 2005 – the published material contains defamatory imputations, some true and some not, but the untrue imputations do no further harm to the person’s reputation than the true imputations;
- absolute privilege under section 27 of the Defamation Act 2005 – the publication was made in parliament or a court or tribunal;
- public documents under section 28 of the Defamation Act 2005 – the material was published in a public document, such as a court judgment, or published honestly to inform the public;
- fair reporting on proceedings of public concern under section 29 of the Defamation Act 2005 – the published material was contained in a public proceeding such as in a court or local government meeting;
- qualified privilege under section 30 of the Defamation Act 2005 – the published material was given to someone who has an interest in having that information on a particular subject, the material was published in the provision of the information, and the publisher’s conduct was reasonable in the circumstances (for example, the giving of information to a police officer investigating a crime);
- scientific or academic peer review under section 30A of the Defamation Act 2005 – the material was published in a scientific or academic journal and the material was subject to an independent review of its scientific or academic merit by an expert on the subject;
- honest opinion under section 31 of the Defamation Act 2005 – the publication was an opinion about an issue of public interest and was based on material which is substantially true;
- innocent dissemination under section 32 of the Defamation Act 2005 – the publisher was acting for another person and did not know the material was defamatory.
The maximum amount of damages for non-economic loss in defamation proceedings is $250,000. Exemplary or punitive damages cannot be awarded for defamation. Damages can be mitigated by an apology, publication of a correction, and damages or compensation awarded for similar defamation.
For advice or representation in any legal matter, please contact Armstrong Legal.
Criminal defamation in Queensland
Defamation in Queensland can also be a criminal offence. Under the Criminal Code Act 1899, if a person publishes defamatory material, knowing it is false or without regard to whether it is true or false, and intends to cause serious harm to a person, or has no regard to whether serious harm is caused, they face a maximum penalty of three years imprisonment.
For legal advice or representation in any legal matter, please contact Armstrong Legal.