What is Defamation?
Defamation is the publication of a defamatory matter about an identifiable person.
Publication can be oral, in writing or by an image. For a matter to be published it must be communicated to a person other than the person being defamed.
A defamatory matter can be any imputation that is likely to injure a person’s reputation, injure a person in their profession or trade, or is likely to induce a person to be shunned or ridiculed.
The defamatory matter must identify a person. For a person to be identified they do not have to be named. If an ordinary, reasonable person with knowledge of the relevant circumstances would read the material as directed at that particular person, then they are sufficiently identified.
Defamation is generally a civil matter, however some states had enacted laws dealing with criminal defamation. For example, in Queensland, defamation can be a criminal offence under the Criminal Code Act 1899 (Qld).
Trial
In a civil case for defamation, the defendant may elect to be by tried by a jury. It may however be impractical to use a jury due to the nature of the case. If so, a judge will preside over the entire matter.
Defences
A defendant in a civil defamation case may have some defences. The available defences include (but are not limited to):
Justification (such as being substantially true)
Contextual Truth
Absolute Privilege (such as things published during parliamentary proceedings)
The Publication of a Public Document
Honest Opinion
Triviality
Whilst not defences, certain actions can be taken by a defendant to minimize the harm done to the person, and to potentially mitigate damages. A defendant may make amends, such as removing the publication of the defamatory matter, issuing a correction or by making an apology to the injured party.
Damages
If defamation is proved, the Court will decide the extent of the damages caused to the plaintiff (the injured party) that the defendant will have to pay.
Generally, a plaintiff is not entitled to an award of exemplary or punitive damages.
The following types of damages are determined in relation to a defamatory matter:
General and Compensatory Damages. These damages compensate the plaintiff for the harm that they suffered from the defamatory matter. The Plaintiff does not have to prove actual harm, it is enough for the plaintiff to be merely identified and defamed. The Court will take into account the amount of harm that has been done to the plaintiff when determining these damages.
Special Damages. These damages compensate for any loss of income that the plaintiff may have suffered as a result of the defamation, or any other incidental expense incurred by the plaintiff as a result of the defamation.
Aggravated Damages. These will only be awarded should the court find that the defamation was intentional, malicious and deliberate or if the defendant was motivated by ill will and intended to cause harm or injury to the plaintiff.
Damages for non-economic losses are capped (as of 2008) at $285,500. A judge may award more, but only under exceptional circumstances. The cap is reviewed each year on or before July 1.
History of Queensland’s Defamation Laws
Trying to achieve uniform defamation laws in Australia was problematic. Since 1979, there were numerous attempts, until 2005 saw the introduction of the standard provisions (model provisions). Uniform defamation legislation followed shortly after.
In Queensland, legislators enacted the Defamation Act 2005, repealing the old Defamation Act 1899. The 2005 Act became law on the 1st of January 2006.
Prior to 2005, Queensland and Tasmania were the only two States to have codified laws. Other jurisdictions relied on the Common Law (Judge made law).
