Defamation law in Australia is complex. With questions surrounding exactly what constitutes this crime and which legal pathways are possible in its aftermath, it can be challenging to know your rights as a target.

The good news is that our experienced investigators have put together a clear guide to help victims of this crime recover their losses.

Here, we explain defamation laws in Australia, including its criteria, consequences and defences. Keep reading to understand the actions you can take to seek justice and repair your reputation in its wake.

What is defamation?

Defamation is the publication of written material, images or spoken statements that may damage the subject’s reputation.

Defamation used to be classified into two types: libel and slander. Slander refers to verbal defamation that hasn’t been recorded, whereas libel regards defamatory statements that were written or recorded.

However, this distinction was removed in 2005, enabling plaintiffs to file defamation lawsuits for both unrecorded and recorded defamatory statements.

  • To bring a defamation case before the court, you as the plaintiff must prove that:
  • The material was published to at least one other person, whether spoken, written, illustrated or posted online;
  • The material identified you either directly or indirectly;
  • The material included at least one defamatory “imputation”, which is a negative statement about your or your behaviour that may make the recipient think less of you or your business; and
  • The material has brought, or is likely to bring, serious harm to your reputation.

Read on to discover more about defamation law in Australia.

History of defamation law in Australia

All Australian states and territories have enacted Uniform Defamation Laws:

Before this reform, there was considerable variation in defamation regulations across different states and territories. Additionally, these state and territory laws were implemented alongside common law, which consists of legal precedents established by courts at various levels throughout Australia.

In July 2021, further amendments to the Uniform Defamation Laws were introduced (2021 Amendments). Notably, Western Australia and the Northern Territory did not adopt these changes and continue to operate under the original Uniform Defamation Laws.

Is defamation a criminal offence?

Criminal defamation is a legal offence, and those found guilty can be sentenced to prison. However, such criminal charges are rare.

In Australia, defamation is generally treated as a civil issue rather than a criminal one. Civil matters are disputes between two parties handled through the courts, without police involvement.

Therefore, if you have been defamed, you will more likely take civil action against the perpetrator than see them face criminal charges.

If the court finds wrongdoing in a civil case, the judge will determine a suitable remedy. This usually involves awarding “damages” or financial compensation to the plaintiff. The court may also order the removal of the defamatory content, if possible, and prevent its future publication.

Consequences of defamation for the culprit

Defamation law allows an individual whose reputation has been unjustly harmed to pursue legal recourse against the party responsible for the attack.

Indeed, defamation consequences reach far beyond the victim – the punishment for defamation can be substantial.

As well as pursuing criminal charges, your options as plaintiff include filing lawsuits for defamation and breach of confidence, or tort claims including injurious deceit, negligent misstatements, falsehoods, and misleading or deceptive conduct under Australian Consumer Law.

Tort law aims to achieve three goals:

  • Compensate the victim and shift the cost of damages to the liable party;
  • Prevent the harmful behaviour from happening again; and
  • Uphold the legal rights and interests of the injured party.

In defamation cases, both individuals and small businesses have the choice to sue multiple parties for the same defamatory statement. This is because the law permits suing not only the person who made the statement but also those who “published” it.

Damages awarded by courts are meant to restore you to the position you would have been in if the defamation had not occurred. The amount of compensation in Australian defamation cases varies greatly, from hundreds to millions of dollars.

Importantly, time limits also apply – which is why you need to take urgent action if you seek to recover your losses.

As per defamation law in Australia, you have just one year to bring an action against an offending party or 3-years if you can convince the court that the action could not be done within the stipulated 1-year time frame.

Who can be sued for defamation?

In Australia, two types of parties can be sued for defamation:

  • The individual or company that published the original statement
  • Any other party that repeated this statement to others thereafter, whether by word of mouth, on social media or via any other means

When it comes to the people or businesses that can be sued for defamation, there is no limitation. You can sue a wide range of entities, including businesses, schools, technology providers, media outlets, employers, colleagues, ex-spouses, customers, competitors, teachers, and anyone else who has made a defamatory statement.

After all, the purpose of defamation law in Australia is to protect your reputation and character, no matter who might be attempting to harm them.

Can you sue for defamation if the statement was factually correct?

If you have been a target of defamation, know that practically any negative statement could be deemed defamation – even if it is technically true.

However, the court may be less inclined to support your case if the statement is harmful but factually correct. Moreover, the court may decide that you were defamed but refrain from awarding you damages or order any other type of corrective action.

Therefore, it’s important to gather as much evidential support for your side before taking the next step. At Bureaus FTC Report, we perform world-leading private and cyber investigations to arm our clients with admissible intelligence. Book a consultation today.

Can a company sue for defamation?

Small businesses and nonprofits might be able to sue for defamation, but it’s generally not an option for larger companies.

Under defamation law in Australia, only “excluded corporations” are allowed to file defamation lawsuits. These are defined as either nonprofits or companies with fewer than 10 employees.

If your company doesn’t meet these criteria, it may still have recourse through a lawsuit for injurious falsehood. This type of claim involves a false statement about a business that is published to third parties—like on a review site or social media—and is made with malicious intent, causing genuine damage to the business.

However, proving injurious falsehood is often more difficult than proving defamation because the plaintiff must show that the statement was made with the intention to cause harm and that it actually did result in significant damages, such as lost sales.

If your large business has been affected by such statements, you should seek independent legal advice to assess whether you can take legal action. If required, bfr’s private investigators can also gather intelligence to assist your case.

Are there any defences to defamation?

Yes. There are eight key defences to a defamation claim:

  1. Justification — The statement is considerably true.
  2. Public Documents — The statement was sourced from a public document, like a government report or record.
  3. Absolute Privilege — The statement occurred in a setting where legal immunity applies, such as a courtroom.
  4. Qualified Privilege — The statement was appropriate because it was made to inform someone with a legitimate need to know, and it was made without malice.
  5. Honest Opinion — The statement was an opinion related to a public interest issue, based on mostly valid information.
  6. Innocent Dissemination — The person being sued was a secondary distributor of the statement, such as a social media user sharing another account’s defamatory post.
  7. Fair Report of Proceedings of Public Concern — The statement is a reasonable recounting of a significant public event, like a legal trial.
  8. Triviality — The statement was unlikely to inflict harm.

Suspect that the party who made a defamatory remark about you has grounds for any of the above justifications? Then it is even more critical to prepare a solid case against them.

Book a private investigation for your defamation case

Don’t let defamation damage your reputation beyond repair. If you believe you have been the victim of defamation, it’s important to take urgent action to gather evidence of the crime and recover your losses.

Our world-renowned private investigation agency brings together unrivalled expertise, exclusive resources and dynamic strategies to equip clients with actionable insights before it’s too late. Book a consultation to get started.

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