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Defamation – What It Takes – Libel & Defamation



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The elements required to prove defamation are difficult to
satisfy before the Court. Each case should be assessed on its own
merits, and the following key components must be proven on the
balance of probabilities for a successful claim:

Who can be defamed?

A corporation has no cause of action for defamation in relation
to the publication of defamatory material, unless:

  1. the corporation is formed for a purpose other than obtaining
    financial gain; or

  2. it has fewer than 10 employees and is not an associated entity
    of another corporation; and

  3. the corporation is not a public body.

The alleged defamatory material conveyed imputations:

The material in question, must actually convey or imply the
message that the Plaintiff thinks it is implying. For example, the
question in this instance is ‘would those words be interpreted
in that manner by a reasonable person?’

The imputation was defamatory:

An imputation is defamatory, only if it is serious enough that it
would likely cause the ordinary reasonable person to think less of
the plaintiff. Once this aspect is proven, damage to reputation is
presumed and it is not necessary to demonstrate injury to
reputation.

Identification:

The material must identify the person who claims to be defamed.
It does not always need to directly name the person, however it
must be specific enough for the audience of the message to know
that the material is about the person allegedly defamed (the
plaintiff).

The publication:

It must be proven that the material was published or authored by
the person accused of doing so. Further, the publication must be to
a third party, meaning at least one other person than the plaintiff
was an audience to the publication.

Defences

The challenge faced by plaintiffs is the broad defences
available to defendants who are accused of defamation. If a
defendant can prove that the imputation was true,
then it is not considered defamatory.

Further, if a defendant can prove that although the imputation
was not necessarily true, but that it was an expression of
their honest opinion
rather than a statement of fact,
and:

  1. it was made in relation to a matter of public interest;
    and

  2. the opinion was based on proper material,

then the defendant would have a complete defence and a claim for
defamation would not succeed.

Between 2013 to 2017 the plaintiffs in defamation cases across
Australia won only 34.9% of the time,1 demonstrating
that the standard of proof is one that is difficult to meet.

Footnote

1. https://www.uts.edu.au/sites/default/files/2021-03/Trends%20in%20Digital%20Defamation_0.pdf

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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