Although we live in a democratic society in Australia, this does not mean that we can say or do what we like without consequences. As the English author Edward Bulwer-Lytton said in 1839 ‘the pen is mightier than the sword’. So too are words. Written or spoken words can have either a positive or highly detrimental effect on one’s personal and professional reputation and can cause significant loss and damage.
Defamation can take two forms:
- Libel – where someone has written something publicly about you which is untrue, which can cause damage to your reputation; or
- Slander – where someone has said something publicly about you that is untrue, which can cause damage to your reputation.
Images, pictures, photographs and gestures can also be held to be defamatory.
What is the process for making a defamation claim?
Step 1: Instructions
We discuss with you all the circumstances and analyse the information provided by you to ensure that it meets the pre-requisites for a defamation action.
Step 2: Concerns Notice
We send a Concerns Notice to the offending party. A Concerns Notice stipulates the basis of your claim and the reasons why you are of the view that you have been defamed.
Step 3: Offer to Make Amends
If the offending party wishes to reach a settlement, they have 28 days to provide an Offer to Make Amends.
Step 4: Court Proceedings
If no such offer is forthcoming, ROCHE Legal will file court proceedings for defamation.
Frequently Asked Questions
Do I have a claim for compensation?
We can determine this after the initial obligation free consultation and you explain all of the circumstances surrounding the publication of the offensive information. Whilst individuals and not for profit organisations can make a claim, it needs to be noted that under the national uniform defamation laws, a company with 10 or more employees does not the right to make a defamation claim. Nevertheless, individuals or groups of individuals employed by or associated with a company e.g. company directors, CEOs or managers – can still sue if they are identified by the publication.
Who can I bring the claim against?
You can bring the claim against the individual that made the offensive statement orally or in writing, and the organisation that published the statement.
What can I claim compensation for?
You can claim compensation for loss or damage to your reputation or for the fact that your reputation could have been harmed.
What has to be proven for my claim to be successful?
For a defamation claim to succeed, you must show that:
- The words, whether written and/or verbal have been published. Publication occurs when the information is disclosed to third parties i.e. the public.
- The information you complain of identifies you as the subject of the criticism. This can be express or implied – provided someone can reasonably identify that the information is about you.
- The information is in fact defamatory. You may not like it – but if the information is substantially true, then you will have to wear it.
- Your reputation could have been harmed.
What evidence do I need for a defamation claim?
- You will need to provide us with a copy of the precise words, images or gestures used.
- We will need details of the precise words used.
In both the above cases you will also need to tell us:
- Who created or spoke the offensive information.
- When and where was this done.
- The manner in which it was ‘published’ i.e. who read it or who heard it.
Are there any important time limits to bring a claim?
Yes. Strict time limits apply. You must begin court action within one (1) year from the date that the information you are unhappy about was broadcast or published. There is the possibility of obtaining an extension of this time limit to three (3) years if you have sufficient reasons to explain the delay.
What can I do to stop defamatory material being published?
Yes. You will need an injunction from the Court. An injunction is a court order preventing an individual or an organisation from taking certain action. However, it is absolutely critical that you move fast – if you are to prevent publication and protect your reputation. At ROCHE Legal we will immediately institute proceedings for an injunction upon being retained by you to protect your reputation.
Is it expensive to take court proceedings for defamation?
Yes. However, it is not overly expensive to take steps to seek a settlement to resolve the problem.
Are there any other options than seeking compensation?
Yes. The offending party may offer to do one or more of the following:
- Apologise in writing
- Issue a retraction of the offending information
- Publish a correction
- Provide a letter stating unequivocally that the offensive information was not true.
- Promise not to do it again.
Who pays me the compensation?
The person and/or organisation that made and/or published the defamatory information.
How much compensation can I claim?
It seems that damages are usually large when media organisations are held to be responsible – due no doubt to the fact that courts believe such organisations have a greater capacity to pay compared to an individual. The amount of damages may also be influenced by the actions or inactions of the organisation or individual at fault once they have been made aware of the offensive material.
How long does a defamation claim take?
Most claims settle out of court in less than 6 months due to the cost involved in lengthy court proceedings. If court cannot be avoided the claim can take up to approximately two (2) years to come to trial.
Can I make a claim on behalf of the estate if the injured person has passed away?
No. However, relatives of a dead person may sue for defamation on their own behalf if they are defamed by what has been said or written about the deceased.