Whether you are a small business owner or ordinary member of the community, it is important to understand what defamation is and how it works. For example, spreading false rumours that a certain business owner has engaged in deceptive conduct is defamatory.
It is important to know your rights when it comes to defamation and the action that can be taken.
An easy measure to prevent defamatory conduct can be found in the form of a cease and desist letter. With LawPath, you can generate this document for free online.
What Is Defamation?
Defamation refers to situations where an individual communicates something which negatively affects the reputation of another. These communications must be substantially untrue and published to at least one other party.
Examples of defamation proceedings were seen in the 2015 “Dennis Denuto of Ipswich” Case where a lawyer sued for being likened to a movie character, and 2014 Case where a school teacher successfully sued a former student for $105,000 after he posted defamatory comments about her online.
The growth of online businesses has expanded the applicability of defamation to online reputation as well.
As part of the wider Uniform Defamation Laws which commenced in 2006, all Australian states and territories have mostly consistent defamation laws. This removed the traditional division of defamation into the 2 categories of libel (written defamation or defamation in a physical form) and slander (verbal defamation).
Any individual may initiate a cause of action for defamation. Unlisted corporations which contain less than 10 employees can also file a claim for defamation. For companies excluded from making a claim under defamation, the tort of injurious falsehood offers an avenue for redress.
What Is Considered Defamation?
It must be shown that the published communication:
- Is defamatory – the material must be understood by an ordinary person as damaging to the reputation of the plaintiff; and
- Was published by the defendant – that is, heard or seen by a third party; and
- Communicates information about the plaintiff – the identity of the plaintiff must be proven
You must bring an action of defamation within 12 months of the publication date of the defamatory material.
What Constitutes Damage To Reputation?
Communication is determined as damaging to someone’s reputation if it:
- Attracts others to ridicule, avoid or despise the person
- Injures the person’s reputation in business
- Leads to a lowered reputation of the person to members of society
Defences To Defamation
A number of defences to prevent liability for defamation exist. These include:
- Justification – defamation only applies when published material is not substantially untrue;
- Triviality – the defendant must prove that the plaintiff was unlikely to sustain harm to their reputation from the publication;
- Publication of public documents – a defence is available if the defendant can prove that the material was published honestly in a public document for purposes such as for education to the public;
- Honest opinion – this is a difficult defence to prove but the truth of the published material is irrelevant, as long as your opinion is based on “proper material” that is substantially true.
What Can You Do If You Have Been Defamed?
If you can prove that someone has published communication that is defamatory, there are a number of remedies available for you. For a more information on measures you can take, please see our guide on what you can do if you have been defamed.
To avoid costly litigation, it may be beneficial to create a cease and desist letter with LawPath.
Conclusion
When running a business, a defamation lawsuit is definitely not what you as a small business owner would want to worry about. Make sure you clarify any gaps in your understanding of the issue to minimise any possibility for conflict.
With LawPath, you can have access to highly qualified business lawyers who can assist you with any legal disputes. Alternatively, use our free online template to create a cease and desist letter in under 5 minutes.
Unsure of whether you have been defamed? Contact a LawPath consultant on 1800LAWPATH to learn more about your legal rights and obtain a fixed-fee quote from one our network of 600+ expert lawyers.
