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Thinking of Suing for Defamation? Or Have been Sued? This Guide is for You!

The law of defamation is used to protect someone’s reputation. Defamation occurs where someone hurts the reputation of another by spreading false information about them.

To be considered defamatory action, three elements must be satisfied:

  1. Information was communicated by a person to a third party (publication);
  2. The material identifies a person (identification);
  3. The information/material contains matter that is defamatory (defamatory matter).

The material will be defamatory if it could:

  1. Injure a persons reputation by exposing them to hatred, contempt or ridicule; or
  2. Cause people to shun or avoid them.

Provided that there are no defences available then the person who makes defamatory comments are liable to pay damages to compensate them for the damage caused to their reputation.

Due to the rise of the internet it is important to understand how defamation can occur. Defamation in an online sense would include people commenting on your Facebook posts. We have been following decisions in Zurich and Canada on defamation issues occurring on social media. We had speculated that it was only a matter of time before Australia caught up with the rest of the world. This speculation proved to be correct with the decision in Johnston v Aldridge [2018] SADC 68 where the plaintiff claimed for defamation by the defendant who had posted on Facebook but also on the comments made by other users on the original post written by the defendant.

The Defendant argued that it would have been impractical for him to police and remove any defamatory comments (not surprising considering the comments ran for 190 pages) but the presiding Judge did not accept this position and found the Defendant liable for the defamatory comments.

The next question is how to compensate for defamation. The damages as seen in the Rebel Wilson case provides some insight in to how difficult attaining damages are.  Damages can be substantial if the defamation causes an actual loss of business, or even a loss of opportunity. In the absence of proven economic loss, substantial “general” damages may still be awarded as a relief for hurt and distress. Last year, Rebel Wilson was awarded more than $3.9 million in compensation — the largest defamation damages payout ever ordered by an Australian court — after a jury found she missed out on film roles because the articles claimed she had lied about her age, real name and childhood. However, the Court of Appeal dismissed Rebel’s economic loss award in its entirety – from a massive $3.9 million to nothing.  This discount highlights the weakness of the loss of opportunity cases for claimants.  Rebel Wilson did receive damages for non-economic loss which was for humiliation and hurt feelings caused by the defendant reduced from $650,000 to $600,000.

It is significant to note the Court of Appeal’s decision to maintain the trial judge’s ruling that the statutory cap on damages awards for non-economic loss can exceed the cap where circumstances of aggravation are established.

There are time limits which apply to defamatory matters. Any action must be brought within one (1) year of publication of the matter complained.