Defamation Law in Australia
The law of defamation is as old as mankind itself and originated from the concept that it was an offence to bear false witness against another. It is one of the oldest laws known to man, and has even been referenced in the Bible, amongst other religious texts.
The law of defamation, therefore, has a long history, from the Sumerians, the Babylonians and the Romans. The modern law relating to defamation in Australia is taken from the long common law history of defamation throughout England. However, since 2005, defamation law throughout Australia has been relatively uniform among the various States and Territories, and has abolished some of the common law distinctions which are still recognised throughout the United Kingdom today.
One such difference in the law of defamation between the U.K. & Australia is that the distinction between libel and slander is still recognised in the former, but has been abolished the latter, Australia, so that there is now only one tort and cause of action – that is – defamation.
The law of defamation, throughout Australia, is concerned with the protection of a person’s reputation. As of July 2021, most States and Territories require a plaintiff to establish the following elements in order to make out a successful defamation claim. Those elements are:
- Publication – that the matter was published to at least one (1) other person.
- Identification – that the matter so published identified the plaintiff.
- Meaning (otherwise known as imputation) – that the matter so published carried a meaning which is defamatory of the plaintiff, such that it would effect the view of the plaintiff in the minds of right thinking members of society.
- Serious harm – that the publication of the matter caused, or is likely to cause, serious harm*.
The law of defamation is extremely complex, as when it was published, who is capable of being identified and the particular formulation of meaning require specific legal skill and experience, as well as an understanding of the pre-action procedure rules (that is, the procedures which must be followed before commencing a claim), which include, but are not limited to, providing proper, effective and legally compliant notice to publisher of the defamatory material.
If you have been defamed, or you wish to publish something which you believe may be defamatory of another person, please contact us by email at lee@cpl.allenlaw.au or alternatively on 0429 070 261, and we will be happy to assist you.
This article is general in nature and is not to be relied upon as legal advice on any subject matter. The article should not be used as a substitute for legal advice from a qualified legal practitioner, as the law could change or may not be applicable to the particular matter at hand.
*Western Australia and the Northern Territory have not adopted the most recent amendments, which took effect on 1 July 2021, accordingly, a plaintiff is not required to establish that the publication of the matter caused or was likely to cause, serious harm. In those jurisdictions, harm is presumed on the basis that the words have an inherent tendency to cause harm.
