Defamation Law deals with situations where a person or company has said, written, or published something untrue or unsubstantiated, which in turn has had a negative impact on the reputation of another person.
Defamation can occur in several situations. Particularly in a society which is reliant on social media, the ability to publish something about someone, true or not, has increased over the years.
How do I prove that someone has defamed me?
There are 3 elements that need to be proven.
To successfully prove that someone has defamed you, you must prove:
Element #1: That the Defendant has published the defamatory statement to the public
- Publications include articles, programs, pictures, social media, etc
- A publisher includes anyone who publishes or participates in the original publication, including: journalists and editors of a publishing company
- “The public” can be at least one other person
Element #2: That the statement was in fact defamatory
- What imputations (or accusations) arise as a result of the statement?
- How would the imputation be perceived by an ordinary, reasonable, member of the community?
- Imputations can be interpreted in three ways:
- By its natural and ordinary meaning;
- By false innuendo (implications and inferences); or
- True innuendo.
- Would the published material be likely to cause ordinary, reasonable, people to think less of you, to lower you in the estimation of others?
Element #3: That you would be able to be identified as a result of the publication.
- Is the material ‘of and concerning’, or ‘about’ you?
- Would it be ‘reasonably referable’ to you?
Defamation claims must usually be brought within one year of the defamation occurring.
However, in some circumstances, the Court may accept that the time limit be extended for up to three years.
What if I was accused of defamation? What are the defences?
There are six available defences for defamation
Defence #1: Truth – also known as ‘justification’ defences
If the Court finds that the statements are ‘substantially true’, the claim for defamation will fail.
Defence #2: Privilege defences
There are 2 types of defences of ‘privilege’:
- Absolute privilege: statements made in situations where there is absolute privilege (for example, proceedings of a parliamentary body, or Court or Tribunal) are not defamatory.
- Qualified privilege: May apply in situations where the publication was made to a limited audience.
- Under the common law, qualified privilege extends to statements made about government or political matters.
- For this defence to succeed, the Defendant must be found to have acted reasonably and not maliciously.
Defence #3: Comment defences
The Defendant must prove that the statement was a fair comment that was in the public interest, as opposed to a fact.
Defence #4: Protected report defences
A Defendant will be found not to have defamed if they can prove that their report was fair and accurate and was of public concern.
This defence applies mainly to journalists and members of the media.
Defence #5: Innocent dissemination
The Defendant must prove:
- That they had the capacity of a ‘subordinate distributor’ – that is, someone who was not the first or primary distributor of the matter, the author, or did not have control of the content or publication prior to its publication.
- That he/she did not know, or should not ought to have reasonably known, that the statement was defamatory; and
- That their lack of knowledge was not due to negligence.
Defence #6: Triviality
The Defendant must prove that the statement was trivial in nature, and that the person claiming to have been defamed was unlikely to have ‘suffered any harm’.