Defamation occurs where one party publishes material about another party that is untrue and that causes loss or damage to the other party. An action for defamation is almost always a civil action. However, there are some limited circumstances where defamation can be a criminal offence. This article only considers civil actions for defamation. Defamation in Western Australia is governed by the Defamation Act 2005.
Who can sue for defamation?
An individual can sue for defamation. A corporation that has no more than ten employees or a non-for-profit organisation can also sue for defamation.
Corporations with more than ten employees cannot sue for defamation. Estates of deceased persons cannot bring an action in defamation or continue to pursue actions for defamation that were already before the courts before the deceased died.
Who can be sued for defamation?
An individual person can be sued for defamation as can legal entities such as corporations, incorporated associations and government bodies. Any person who contributed to the publication of the defamatory material can be sued. For example, an individual journalist could be sued alongside the publication that published the defamatory statement.
What must be proven?
For a civil claim for defamation to succeed, three things must be proven on the balance of probabilities:
- Publication: Something has been made known to a third party (not just to the person claiming for defamation.) Publication can be oral, written or drawn in pictures. There can be more than one publication. Each time the defamatory material is repeated to a third person there is a publication.
- Identification: The person or entity who claims defamation must be able to be identified through the publication of the relevant material. The relevant material does not have to name the person or entity claiming defamation explicitly. However, a reasonable person with knowledge of the relevant circumstances must be able to identify the claimant through the material.
- Defamatory material: The relevant material must be proven to in fact be defamatory. For it to be considered defamatory the relevant material must have been capable of conveying the defamatory meaning to an ordinary person; and an ordinary person would have taken the defamatory material to have the defamatory meaning.
What damages can be claimed?
The damages that can be claimed are those which reflect the loss caused by the defendant to the claimant due to the publication of defamatory material. Damages can be claimed for economic loss, e.g. loss of income due to the defamatory publication. Damages can also be claimed for non-economic loss, e.g. pain and suffering. The court limits the amount of damages that can be claimed for non-economic loss.
Under section 15 of the Limitation Act 2005 an action for defamation must be commenced within one year of the publication of the defamatory material.
Trial by jury
The claimant may elect to have their case heard in a trial with a jury. In some circumstances, the court may decide that trial by jury would not be appropriate. This may be where the trial requires a prolonged review of documents or the subject matter is scientific or technical.
There are several defences that a person or entity being sued for defamation can advance. These include:
It may be a defence that what the defamatory material said was substantially true.
It may be a defence that when the whole of the published material was taken in context no harm could have been sustained by the claimant.
Publications made in proceedings in parliament or various courts and tribunals are not able to be the subject of defamation actions
Publication in Public Documents
It may be a defence if the defamatory material that was published had been contained in a public document
Fair report of proceedings of public concern
It may be a defence if the defendant can prove that the material was contained in a fair proceeding of public concern such as a proceeding of a parliamentary body, public or international organisation or conference.
The defence of qualified privilege may be available where the defamatory material was published to a recipient where that recipient was receiving information from the defendant about a topic in which they had an interest and the conduct of the defendant was reasonable in the circumstances. For this defence to be available, the publication of the material must not have been motivated by malice.
Some defendants may not be liable where the published defamatory material was a matter of opinion, was based upon “proper material” and where the subject of the published material was a matter of public interest.
Some publishers may not be liable where they did not know the material to be defamatory, and their lack of knowledge was not due to their negligence.
The publication of the material was so trivial that the claimant was unlikely to have suffered any loss.
Alternative Dispute Resolution
The legislation considers some alternative methods for resolving disputes relating to defamation.
Offers to make amends
The legislation sets out the procedure to be followed for offers to make amends. The claimant may send a notice to the defendant in writing, setting out what they believe to be the defamatory material. The defendant can respond to this notice within 28 days with an offer to make amends. The defendant can also request more information if the notice is unclear.
An offer to make amends may be to do various things to “make amends” such as make an apology or to compensate the claimant. If the claimant accepts the offer, they cannot continue to take action against the defendant for defamation. If the claimant does not accept the offer the defendant may use the offer as a defence in any action the claimant takes for defamation.
Apologies, if made, are not admissions of liability on a publisher’s behalf. Apologies are not able to be admitted as evidence in defamation proceedings of the defendant’s fault. However, they may be relevant when the court is determining what damages to award the claimant.
It may be possible in some circumstances to obtain a court order to prevent the publication of defamatory material.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.