Defamation
Do you think you may have been defamed by someone?
The action for defamation arises when something is written, said or otherwise represented about you, to another or others, which tends to lower your reputation in the eyes of the community.
Publication can occur verbally or in a written form for example, by letter or newspaper article, or in more recent times by e-mail, search engine result, internet blog or a social media post about you or your business on Facebook, Twitter, WhatsApp and Google.
BSG Lawyers regularly acts for clients who have had their personal reputations damaged, as well as those who have had their professional and business reputations harmed and suffered loss as a result.
The Defamation Act 2005 (SA) requires the aggrieved person to establish:
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- Material has been communicated (either in writing or orally) about them to a third person;
- The communication has caused the third person to form a reduced opinion of them;
- The defamatory material has caused, or is likely to cause, serious harm to their reputation.
It does not matter whether or not the publisher of the material intended to refer to or disparage a particular person. It is generally enough if:
the words reasonably lead persons acquainted with the complaining person to believe that person is referred to;
that the material discredits the person’s character and reputation.
Have you received a ‘Concerns Notice’
Are there any defences to defamation?
There are a number of defences to defamation. The most common defences cover situations where depending on the facts of the case:
- the defendant can prove that what they published was substantially true;
- the defendant was offering their honest opinion, rather than making a statement of fact; or
- the defendant was innocently distributing defamatory material, for example where they are the employee of a newsagent or library.
What is Publication?
As stated above, for material to be defamatory it must be published (made available) to a third person who is capable of understanding its defamatory significance. A letter is not published if it is in a language unknown to the reader. A letter read only by, and insulting only to, the person to whom it is addressed is not published. Defamatory material is published when it is communicated by someone other than the person it defames, to another such person. This is known as bilateral publication.
In the High Court case of Dow Jones & Company Inc v Gutnick (2002) 20 CLR 575 at [26] the Court found:
Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener, or the observer. Until then, no harm is done by it. This being so it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone. It is not. It is a bilateral act —in which the publisher makes it available and a third party has it available for his or her comprehension.
The law of defamation and the internet is an expanding area in the law and caution should be taken when posting comments on social media platforms. The case law and decisions also demonstrate the development of potential liability in defamation of publishers, including social media platforms and internet search engines, who host and publish defamatory content posted by users or third parties.
Serious harm requirement
Generally, defamation proceedings cannot be commenced without the aggrieved person first issuing the publisher a Concerns Notice setting out the defamatory imputations. Within 28 days, the publisher can offer to make amends. If this does not resolve the matter, the victim must sue in court within 1 year of the defamation (a limited extension of time may sometimes be obtained).
The Concerns Notice must outline the what serious harm has been alleged
If you think you have been defamed or you have received a Concerns Notice you should seek an appointment with BSG Lawyers as early as possible
Pursuant to recent changes to the Defamation Act the Concerns Notice a person cannot claim for defamation unless they prove that the defamatory publication caused or is likely to cause, serious harm to the reputation of the defamed person. ‘Serious Harm’ is not defined.
Disputes
Our focus is on achieving an early resolution with practical outcomes.
BSG Lawyers understand the commercial world and fight hard for the best interests of their clients. Where possible we will seek to engage with the other party on your behalf to resolve the matter without having to resort to litigation. If your matter progresses to litigation we will nevertheless seek to get your dispute resolved during the ligation process and if your matter proceeds to trial we have the ability and experience to present your case to the court in an organised and determined way.
If you think you have been defamed or have received a Concerns Notice, seek legal advice ASAP
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