Defamation of character is both a civil and criminal wrong and is a combination of the old actions for slander and libel.
A person is defamed when the Defendant:
1. communicates (or publishes):
2. Material (in spoken, written or pictorial form):
3. About the Plaintiff (must be a living individual, a non profit organization or a company with less than 10 employees which is not related to another company):
4. Which is defamatory because it:
▪ injures their reputation by exposing them to hatred, contempt or ridicule;
▪ causes people to shun or avoid them; or
▪ lowers their estimation in the mind of right thinking members of society.
At law a statement can convey a defamatory meaning (an imputation):
▪ By their natural and ordinary meaning;
▪ By a false innuendo, when there is a secondary meaning which comes from reading between the lines.
▪ By a true innuendo, where the insult comes from reading the words used in light of other facts known by the recipient of the words or pictures used.
If these elements are met, and provided no valid defence or privilege exists, then a Defendant will be liable to compensate the Plaintiff for damage caused by the defamation to his or her reputation (character) and for the emotional hurt (or sting) of the lies or the insults. An injunction may also be obtained to prevent further defamatory publication so as to protect your character.
Some common fallacies:
1. You do not have to be famous – in fact, it could work against you if you were;
2. You do not have to prove that the statements are false, the law presumes they are false;
3. An individual does not have to prove that they suffered any actual losses because damages in defamation are often compensation for embarrassment and hurt feelings.
Alex Nelson is a Brisbane Barrister specialising in defamation law. Contact him on 0402 227 498 or firstname.lastname@example.org