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Defamation

The team at Meyer Vandenberg has extensive experience in dealing with defamation matters, both from a complainant and accused perspective.

The old saying goes ‘sticks and stones will break my bones, but words will never harm me‘.  But here at Meyer Vandenberg, we know that sometimes that could not be further from the truth.  Defamatory comments have the potential to destroy lives and livelihoods. Quick, assertive action needs to be taken at the outset to limit the damage caused.

Defamation law is complex, being once described by Justice Ipp of the New South Wales Court of Appeal as having ‘legal forms and practices unknown anywhere else … [with] its own dialect and adopted esoteric customs… [and] pleadings… as complex, as pedantic and as technical as anything known to Dickens’.

Our experienced lawyers can guide you through the complexities to explain your legal position and options, and then work with you to protect your reputation, set the record straight and get you the compensation you deserve.

What we do

  • Take the time to properly understand the facts, evidence and surrounding circumstances of your situation to analyse the offending words and assess whether anything is defamatory of whom and how
  • Consider your legal position based on the current state of relevant law, and determine the best strategy to protect your interests
  • Deliver advice in plain-English about your legal position, options for the next steps and our recommendations tailored to your situation and based on our expertise
  • Prepare Concerns Notices
  • Prepare and run court proceedings (litigation) for you, either claiming or defending, including appeals
  • Negotiate at any time with the other parties to resolve as quickly as possible the issues between them, whether the negotiation be formally by mediation or informally by communications between the parties (and their lawyers)
  • Prepare and help you execute documents recording and giving effect to settlement reached between the parties or court orders

The MV difference

  • Expertise in recognising, pursuing, defending and resolving defamation claims
  • An experienced and dedicated team that understand the emotional as well as financial damage caused by defamation or accusations of defamation
  • Expertise in working with sensitive or politically-charged subject matters
  • Connection to Australia’s leading defamation barristers
  • Plain-English advice about your rights arising under defamation legislation, with commercial recommendations to resolve the dispute
  • Frank and fearless advice to you about the strength of your legal position, and the likely outcome of any dispute
  • Full and frank disclosure of all legal costs to ensure a properly informed decision about the next steps is made and there are no unhappy legal costs surprises along the way

FAQs

What is defamatory?

There is no clear definition of what is defamatory. The usual tests that are applied by a court are that a publication will be defamatory of you if it:

  • disparages your reputation; that is, it causes ordinary members of society to think less of you;
  • causes others to shun, avoid or exclude you; or
  • subjects you to hatred, ridicule or contempt.

Whether or not the author of the publication intended to convey the defamatory meaning is irrelevant. The question is largely one of impression — what is the impression, or the gist, of the publication to an ordinary reader?

What is a Concerns Notice?

While defamation litigation can be commenced against you without any warning, the Civil Law (Wrongs) Act 2002 (ACT) (being the ACT’s defamation legislation) sets out a mechanism to attempt to resolve defamation disputes before people head off to court.

The first step in this process is that the person who feels they have been defamed (“the aggrieved person”) will give the person who said or wrote the offending publication a Concerns Notice.  A Concerns Notice is a written notice that sets out:

  • details of the publication the aggrieved person is complaining about; and
  • how the publication defamed them, being details of what the publication could be understood to insinuate about the aggrieved person (known as the “imputations of concern”).

If you have been given a Concerns Notice, it means the aggrieved person believes they have a defamation claim against you and could sue you for damages.

If you receive a Concerns Notice, you have the option of responding with an offer to make amends.  If done correctly, this could prevent the aggrieved person from commencing defamation litigation against you.

I know this comment is about me but it does not say my name, is it still defamatory?

Yes!  A defamatory publication does not need to include your name to defame you.

It will defame you if someone reading the publication who knows your circumstances would understand the publication to be referring to you. For example, a Facebook post that says: ‘the guy that drives the green Mitsubishi is the one that keeps stealing everyone’s money’ would be of and concerning you if you could be identified by those who read the publication because they know you drive a green Mitsubishi.

It is irrelevant whether or not the person who published the post intended to refer to you, or even knows you.

How long do I have to make my claim?

In general, you have one year from the publication of the defamatory material to bring a claim.

How can you defend a claim of defamation?

There are various defences available to defend a defamation claim. Some defences are found in defamation legislation, while other defences have been developed by the courts over time. The two most used defences are justification (also known as the truth defence) and honest opinion.

Also, there are certain people who cannot be defamed, namely:

  • deceased people;
  • a corporation, unless it is an “excluded corporation”; and
  • an elected government body.

Resources

Related E-briefs

When does a comment online cross the line? Part 2

When does a comment online cross the line?

Just been given a concerns notice? Here's what to do