Defamation 101 – What You Need to Know

What is defamation?

Defamation in Western Australia is governed by the Defamation Act 2005 (WA) (Defamation Act) and is concerned with protecting reputation.

Before deciding whether to bring an action or a claim in defamation, the following must be established:

1. there was a communication (publication) to a person other than the injured person;
2. the publication was about or concerns the injured person; and
3. the publication was directly or indirectly defamatory to the injured person in that it;
   • lowers the person’s reputation in the community;
   • leads people to think less of, shun or avoid the person; and
   • injures the person’s reputation or standing in the community, business or profession.

A defamatory statement can be written or verbal and only a living person can be defamed.

Generally, a corporation cannot pursue a claim in defamation, the exception being where a corporation can establish that they are an ‘excluded corporation’.

An ‘excluded corporation’ is a corporation where:

1. the object(s) for which it is formed does not include obtaining a financial gain (for example a not for profit company);
2. it employs less than 10 people; and
3. is not a public body;

(section 9 of the Defamation Act).

If an individual has defamed a person they may be liable for damages, however, there are certain defences which are available pursuant to the Defamation Act.

Defending a defamation claim - defences

Division 2 of Part 4 of the Defamation Act sets out the defences to defamation.

A person will not be held liable for defamation if they can demonstrate one of the following defences:

1. Justification/truth – where it can be demonstrated that the defamatory statement was or is substantially true (section 25 of the Defamation Act).
2. Honest opinion – where the defamatory imputation can be shown to be;
   • a fair comment and/or an expression of an opinion;
   • not a statement of fact;
   • related to a matter of public interest;
   • based on proper material which is true; or
   • is objectively fair or the proper material is sufficiently stated, indicated or referred to in the publication;
     (section 31 of the Defamation Act).
3. Privilege – the two most commonly used defences of privilege include:
   • Qualified privilege - protects a defamatory matter if there is an interest or duty to publish the matter and the person in hearing or reading it had a corresponding interest or duty to receive it; for example reporting a crime to the police. This defence, however, will not be available if an injured party can prove the defamatory statement was published in malice – i.e.; with the intention to injure a person (section 30 of the Defamation Act); and
   • Absolute privilege - where a matter is published during the course of parliamentary proceedings (section 27 of the Defamation Act).

There are other defences that may be available to a publisher depending on the facts and circumstances of each case and this is something which should be considered when seeking legal advice.

There are also relevant steps you can take to reduce any potential claim for damages in defamation.

Concerns Notices and Offers to Make Amends

One of the first steps which should be considered prior to any commencement of proceedings is the issuing of a Concerns Notice to the publisher of the defamatory statement.

A Concerns Notice allows an injured party to seek an apology and an appropriate form of compensation (such as damages and/or seeking the payment of legal fees) while avoiding the costs of commencing proceedings. Further, if the Concerns Notice is not accepted and proceedings are issued, it may offer cost protection(s) in the form of indemnity costs to the injured party.

The Concerns Notice must state:

1. when the defamatory statements were made;
2. the substance of the defamatory statements which arise from the publication;
3. who the statements were published to; and
4. the remedy sought (for example, an apology, retraction of the statement or compensation).

Pursuant to section 15 of the Defamation Act, the publisher of the defamatory statement will then have 28 days to make an Offer to Make Amends (the requirements of which are discussed in further detail below)

The Offer to Make Amends must:

1. be made within 28 days of any Concerns Notice which may have been received from an injured party; and
2. before a defence has been served in an action brought by the injured party against a publisher in relation to the defamatory matter in question.

There are also requirements as to the content of an Offer to Make Amends under section 15 of the Defamation Act which include that any offer must:

1. be in writing;
2. be readily identifiable as an Offer to Make Amends;
3. state if the offer is limited to any particular defamatory imputations;
4. include an offer to publish or join in publishing a reasonable correction of the matter;
5. include an offer to take, or join in taking, reasonable steps to tell any other person (to which defamatory material has been provided); and
6. include an offer to pay expenses reasonably incurred by the injured person before the offer was made and in considering the offer.

An Offer to Make Amends may also include any other kind of offer, or particulars of any other action taken by the publisher to redress the harm sustained by the injured person.

If the Offer to Make Amends is not accepted, it is a defence to an action where:

1. the offer was made as soon as practicable after becoming aware that the matter is or may be defamatory;
2. that the publisher was ready and willing to carry out the terms of the offer; and
3. the offer was reasonable in the circumstances.

Other ways to minimise your risk

In addition to responding to a Concerns Notice by way of an Offer to Make Amends, a publisher of a defamatory statement can also minimise their risk by:

1. making an apology to the injured party; or
2. publishing a correction of the defamatory imputation.

There are also alternative resolution procedures which are set out in Part 3 of the Defamation Act that can be used to resolve matters without commencing proceedings and incurring the costs of litigation.

If the matter goes to court – what damages could be awarded?

There are three types of damages which could be awarded in a defamation case, they are:

1. general damages (non-economic loss);
2. special damages (economic loss); and
3. aggravated damages (awarded to compensate a party for injured feelings caused by an intentional act by a defendant: for example; where it is malicious or improper act).

In Western Australia (as of 1 July 2021) the maximum damages for non-economic loss that may be awarded in defamation proceedings is $432,500 pursuant to section 35 of the Defamation Act.

Whether a party is awarded aggravated damages is determined on the facts and circumstances of each case and usually involves a malicious or improper act.

A plaintiff cannot be awarded exemplary or punitive damages for defamation.

Lavan comment

Demonstrating that the defamatory statement has been ‘published’ is a fundamental element in succeeding in a claim of defamation and there is emerging case law as to what constitutes a ‘publication’ and the expansion of liability for defamatory comments.

The recent High Court case of Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Ltd v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27 (Voller) is an example of where the court has expanded the interpretation of what constitutes a ‘publication’ to include liability for third party comments made or found on websites and social media which are defamatory.

In the Voller case, the appellants who run and operate Facebook pages, posted news articles regarding Mr Dylan Voller including posts concerning his incarceration in a juvenile justice detention centre in the Northern Territory.[1]  After the appellants posted the news articles, other Facebook users posted defamatory statements on the appellants’ Facebook page.

Mr Voller began proceedings against the defendants in the NSW Supreme Court, the decision of which was appealed to the Court of Appeal and subsequently to the High Court of Australia where the appellants continued to maintain their argument that they were not the ‘publishers’ of the defamatory statements.

Ultimately, the High Court found that the appellants were 'publishers' of third-party comments on their Facebook pages.

Kiefel CJ, Keane and Gleeson JJ were of the view that:

“[a]n action for defamation does not require proof of fault. Defamation is a tort of strict liability, in the sense that a defendant may be liable even though no injury to reputation was intended and the defendant acted with reasonable care. The intention of the author of the defamatory matter is not relevant because the actionable wrong is the publication. It is often persons other than the author who are liable as publisher. A publisher's liability does not depend upon their knowledge of the defamatory matter which is being communicated or their intention to communicate it”[2]  (emphasis added).

Further, their Honours asserted that:

1. if a person intentionally lent their assistance to publication, then they are considered principals in the act of publication"[3]; and
2. liability of a person as a publisher ‘depends upon mere communication of the defamatory matter to a third person’[4];

and applied the principle in the case of Trkulja v Google LLC (2018) 263 CLR 149 (Trkulja), whereby[5]

a person who has been instrumental in, or contributes to any extent to, the publication of defamatory matter is a publisher. All that is required is a voluntary act of participation in its communication.

Given the increasing use of technology and social media, and the findings made in the Voller case (and applied in Trkulija), individual users and businesses need to be mindful about:

• the content they publish;
• monitoring what content is being published by third parties; and
• encouraging, participating or facilitating the publication of comments by third parties;

on social media pages or websites.

Finally, it pays to exercise caution when publishing statements (whether intentional or not) which may easily identify a person and/or may injure a person’s reputation or standing.

If you think you may have published a defamatory statement (whether intentional or not) or you think you may have been defamed and would like to confidentially discuss your matter, please contact Cinzia Donald or Kristy Yeoh.