EnglishEssentials
Publication (Publication):
This is the first element a victim needs to prove in a defamation lawsuit.
A defamatory matter is considered published when a third person hears or reads the content of the defamation matter.
The release factor will not be established if the victim is the only one known to the defamation. Example: Person A doesn’t like person B and has written insulting letters to person B. Person A only sends letters or emails to person B without ‘Cc’ to anyone. In this case, person B will not be able to prove the release factor.
However, person B can still report to the police if the content of the letter contains threats that make person B fear for his or her safety or that of his family.
Person B can still directly apply for a Court order to permanently ban Person A from having direct contact with Person B (Intervention Order).
Identification:
This is the second factor that the victim needs to prove. In order to succeed in a lawsuit, the person being defamed must prove that he or she has personally been named or implied in such a way that the average person can recognize the victim of defamation as Who.
Defamatory matter:
Defamation is the act of humiliating others, slandering or attacking the honor of an individual or a group of people with baseless insults or slander. In Parmiter v Coupland [1840] 6 M & W 105, the Court ruled that a person commits defamation when he or she intentionally damages another person’s honor and exposes that person to public scrutiny. A publication which is calculated to injure the reputation of another and intends to hold him up to ridicule.
The act of defamation can be done by word of mouth or by popular writing on TV, radio, newspaper, website, email, facebook, twitter and other media.
When considering the content of a ‘defamation matter’, the Courts generally adopt the following approaches:
What would an ordinary person, when listening or reading, understand the content of that ‘natural and ordinary meaning’;
When the ‘defamation issue’ is ambiguous, whether some other person listening or reading can understand the defamatory nature of the matter (true innuendo);
The intent or error of the defendant’s speech or writing is not important and does not affect the interpretation of the content. For example, person A, after publishing an article with defamatory content to person B, clarified that: that is not what person A meant. That explanation will have no legal validity
Forwarding An Email Or Sharing (Share) Defamation On Facebook.
Even though person A is not the author, if person A forwards a defamatory post via email or ‘shares’ on facebook, person A can still be sued by the victim of that defamation.
Who Will Be the Defendant – Author or Editor?
When an author submits a defamatory article (about another person) to a newsroom, the action is considered ‘published’ even if the editor decides not to publish the article. .
In the event that the article is published (whether privately or for free), both the author and the newspaper can be sued for defamation. This was clearly explained by the court in Webb v Bloch [1928] HCA 50 and has become a very important case law. For example, person A writes an article that defames person B, newspaper C is afraid of being sued, so it requires person A to commit to being responsible for the content of the article. In this case, the above commitment has only limited legal validity between person A and newspaper C without affecting the legal rights of person B (who is a victim of defamation). This means that person B still has the right to sue both person A and newspaper C for damages.
