Have I been defamed? Six things you need to know about defamation

This year has seen high-profile defamation proceedings occur here in Australia and overseas, bringing it into the public spotlight. 

For the three months to June, the world tuned in to watch Johnny Depp sue Amber Heard in court for defamation when Amber referred to herself as “a public figure representing domestic abuse” in a published opinion piece that clearly referred to the actor in 2018. In the same trial, Heard countersued after one of Depp’s lawyers called Heard’s abuse allegations a hoax.

Here in Australia, The Sydney Morning Herald and The Age newspapers decided in April to pay former columnist Clementine Ford a little under $60,000, after defamation proceedings based on comments from the mastheads’ executive editor appearing in an online article. The judgment was not a decision of merits from the Court, rather it was a settlement prior to trial.

Only a few months later, in another high-profile case, former NSW deputy premier John Barilaro was awarded $715,000 in defamation damages from Google over videos published on the ‘friendlyjordies’ channel on Google’s YouTube platform in 2020. 

The court found Jordan Shanks, who owned the friendlyjordies account, repeatedly and vindictively used descriptions of Mr Barilaro, as well as engaging in cyberbullying in the form of trying to intimidate Barilaro from bringing proceedings to court and also to intimidate his lawyers from acting for him.

Eclipsing these two Australian cases in proceedings and publicity, war veteran and executive Ben Roberts-Smith concluded defamation proceedings in the Federal Court against a subsidiary of Nine Entertainment.

Roberts-Smith is claiming that the allegations of unlawful killings, as well as the allegations of bullying and domestic violence published by The Sydney Morning Herald, The Age and The Canberra Times were false.

And this week, Lachlan Murdoch, the co-chairman of News Corporation, commenced defamation proceedings against independent news site Crikey in relation to an article from June that discussed the January 6 Capital riots. Crikey is a sister publication of SmartCompany.

The above examples illustrate the broad nature and spectrum of events that can potentially be subject to defamation proceedings, however there are some commonalities among them too; they all involve individuals bringing about the defamation action, and the comments at the centre of the proceedings were all put on public display in some way.

While defamation certainly isn’t new, the advent of social media has meant that more and more people are suddenly finding themselves in the position of being a potential publisher of defamatory material, or regrettably on the receiving end of disparaging remarks.

Below, you’ll find some high-level guidance on the six things you need to know about defamation.

Large companies cannot bring an action for defamation

The only parties who can commence a defamation action are as follows:

• A natural person. Proceedings cannot be brought by or continued on behalf of a deceased estate;
• A not-for-profit corporation; or
• A small corporation with fewer than 10 employees.

Companies can pursue another legal remedy called “injurious falsehood” if they can prove a loss. 

You do not need to name the person for the statement to be defamatory

A person does not need to be specifically named in a publication, rather they need to be able to be reasonably identified by the description in the material eg the Prime Minister, the owner of a local business etc. 

It may also be defamatory if referring to a class of people. For example, referring to “…all of the staff at the EFG store” or “…the management of HIJ company” where the group is so small that a person could say that they were readily identifiable. 

A comment on an online article can be defamatory

If you make defamatory statements in a comment on an online article or ‘post’, it can still be considered defamation, unless it falls within the defence of “fair comment”, which seeks to protect the right to free speech. If the review is anonymous or made under a pseudonym, it is still possible to unmask the reviewer to take action.

Sharing an article that is defamatory can get you into trouble

Yes, if you share an article that has defamatory statements, you can potentially be considered a secondary publisher and may be liable for the defamatory statements. 

Traditional defamation principles are constantly being adapted in the courts to meet the demands in our new online world. In cases where material goes “viral”, the person who originally published the material is often not the only person who finds themselves as a defendant in Court proceedings. 

Truth is a defence 

Truth is an absolute defence to defamation. What this means is, if someone publishes an article or comments that indicate that a sportsperson takes illicit drugs, even if that sportsperson has taken illicit drugs only once, depending on how the article is worded the truth defence may apply.

How long do you have to bring proceedings? 

No more than one year from publication. 

If you feel that you have been defamed, you should put all parties on notice of the defamatory material as soon as possible after the matter is published. In the digital age where articles can be removed from where they are published at a moment’s notice, a quick response is often important.

If you believe you have been defamed on social media, by a bad review or in a published article, you should seek legal advice on the merits of your claim as soon as possible after the material is published. 

Catherine Ballantyne is a partner at Madgwicks Lawyers.