Bennett & Philp Client Update: Twelve Tips to Avoid the Potential of Being Sued for Defamation

Defending a defamation claim can be an expensive and time consuming, not to mention a potentially humiliating experience. The following are 12 tips to help avoid or at least reduce the potential of being sued:

  1. Generally speaking written or spoken words will not be found to be defamatory if ordinary and reasonable members of the community would not interpret them to injure or have a tendency to injure another's personal, business, trade or professional reputation.
  2. If words do not identify anyone either directly or indirectly then no cause of action is capable of arising as identification is an essential element of defamation.

  3. Publication is the third essential element of defamation. If words are not published or communicated to a third party ie, one or more other persons, then no cause of action in defamation arises. For example, if A utters disparaging words to B then there is no defamation. However if A utters those words to B in the presence of C then that will constitute publication for the purposes of a claim for defamation.

  4. Care must be taken to ensure that words which are intended to be either written or spoken do not contain any unintended, secondary meaning or innuendo that is defamatory.

  5. Truth is a defence to an action for defamation but it should always be remembered that strict proof can often be difficult and sometimes costly. In this regard it can be dangerous to rely on the hearsay evidence of someone else.

  6. When publishing an honestly held opinion it is imperative that all of the facts upon which the opinion is based are also published, that there is a clear distinction made as between the expression of opinion and a statement of fact and finally that the opinion relates to a matter of public interest.

  7. Never repeat or re-publish the defamatory words of another. It is no defence to an action for defamation to assert that the words were merely a repetition of statements or words uttered by someone else.

  8. It is permitted by law to publish a fair and balanced report of defamatory words spoken or published in Parliament or in an Australian court or tribunal.

  9. A company formed with a view to profit and employing 10 persons or more, no longer has a right of action in defamation although be aware that the rights of company directors and officers remain unchanged.

  10. No cause of action lies in respect of defamatory statements made in respect of deceased persons.

  11. In certain limited circumstances the law excuses the publication of defamatory statements provided that it pertains to a matter of interest or apparent interest to the recipient, the conduct in publishing the matter is reasonable and the publisher is not motivated by malice or other improper motive.

  12. Finally, if defamatory words are published inadvertently or otherwise the publication of a fulsome apology and correction at the earliest opportunity will generally help avoid the possibility of legal action.

Mark Jones

Special Counsel

This article has been prepared to provide a general overview of this topic and is not intended to provide, nor does it constitute, legal advice. You should seek legal advice before acting on or using the content of this article. Should you require legal advice on matters raised in this article please contact Bennett & Philp Lawyers on +61 7 3001 2999.

Authors

Mark Jones is a Special Counsel at Bennett & Philp Lawyers

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