Defamation in Victoria
Defamation is a tort – a civil wrong that causes a person harm or loss for which they may seek damages. The legal principles around defamation developed under English common law, where the tort was split into two different types of claim: libel and slander. Libel was defamation in writing, while slander was defamation through spoken statements. The laws around defamation in Victoria do not make a distinction between libel and slander anymore. The distinction was abolished in 2006 when Australia’s states and territories adopted uniform defamation legislation. Defamation in Victoria is governed by the Defamation Act 2005.
What is defamation in Victoria?
Generally, defamation in Victoria is the publication of statements that have a negative impact on the reputation of an individual (the ‘aggrieved’), when the statements are not substantiated by facts.
Since the distinction between libel and slander has been abolished, ‘publication’ now includes:
- print media
- online media
The individual who makes statements alleged to be defamatory is called the ‘publisher’.
The law of defamation has become very important due to the amount of content published online these days. The Commonwealth Broadcasting Services Act 1992 limits the liability of the content host or service provider when the host or provider is unaware of the content. However, if a person links to or emails content that is defamatory then they may be held liable as a publisher.
Bringing a defamation claim in Victoria
Within one year of the publication of a defamatory statement, an aggrieved person may bring a defamation claim against the publisher to recover costs for harm sustained. This harm may be economic or non-economic.
Victoria’s Defamation Act caps the amount of non-economic damages that can be claimed at $250,000, although this amount may be adjusted to account for inflation.
If a defamatory statement is published only within a particular jurisdiction – for example, only in Victoria – then the law of that jurisdiction applies to any claim made in defamation. Where a statement is published in more than one jurisdiction, as occurs when material is published in a national newspaper, then the applicable law is the jurisdiction that has the closest connection to the harm caused by the publication.
Elements of the claim
To find a person has been defamed in Victoria, a court must be satisfied that on the balance of probabilities that the defendant:
- communicated or published – broadly construed to include visual as well as verbal and written statements across all types of media
- to any third party – meaning that the communication must be made to someone other than the aggrieved
- a defamatory matter – this may be a blatant lie, an imputation, or a false representation. A communication is defamatory if a person has a reputation and that reputation is damaged by the publication of the lie or imputation.
- about, concerning or identifying a person – untrue statements or imputations that do not identify a particular individual will not create a cause of action for defamation. Groups of people cannot sue for defamation, although there are exceptions where the group or corporation is a small non-profit.
- without lawful excuse – if all the previous elements have been met, but there is a lawful excuse for making the statement then the defamation claim will not survive.
- the publication causes, or is likely to cause, serious harm to the person’s reputation.
There are many defences available to a claim of defamation in Victoria, including:
- justification – meaning the published statement is justified.
- contextual truth – meaning the published statement made imputations that are substantially true when taken in the context they were made.
- absolute privilege – publications made during parliamentary debates, or in court or tribunal proceedings are subject to privilege and are immune from defamation claims.
- qualified privilege – meaning the publication was obligatory for some legal, social or moral reason.
- public document – meaning that the publication content is also contained in a public document, meaning a parliamentary debate, court or tribunal judgment, or other governmental publication.
- fair report – meaning the publication was contained in any fair report of proceeding of public concern.
- honest opinion – the publication was a statement of opinion rather than an assertion of fact.
- innocent dissemination – meaning the distributor did not have control over the content of the publication.
- triviality – the allegedly defamatory statement is trivial and the aggrieved is unlikely to sustain any harm.
Apologies and offers to make amends
Generally, apologies are not considered admissions of liability for the purposes of a defamation claim. When a publisher receives a defamation notice of complaint, it has 28 days to voluntarily make an offer of amends, which should follow a particular process and may contain substantive measures, such as publishing a correction or paying the aggrieved’s expenses.
If a publisher makes a reasonable offer and the aggrieved rejects it, the publisher may use this as a defence to the claim.
Criminal defamation in Victoria
In Victoria, defamation can also amount to a criminal offence. Criminal proceedings for defamation may be initiated where a publisher knew the defamatory statement was false or had no regard whether it was true or false at the time they published it.
The penalty for the offence of publishing malicious defamatory content is a fine, and/or imprisonment for up to one year. If the publisher knows the material to be false, the maximum term of imprisonment increases to two years.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.