What is defamation and where do we draw the line in Australia?


Several high profile Australians have become embroiled in defamation cases, but anyone could find themselves accused.

A number of high-profile Australian defamation cases are being heard this month. 

Greens Senator Sarah Hanson-Young is suing Liberal Democrat Senator David Leyonhjelm, while Australian actor Geoffrey Rush will have his time in court from Monday in a case against newspaper The Daily Telegraph.  

Defamation cases are increasingly in the spotlight, but what exactly do they entail?

What is defamation?

Defamation refers to the process of defaming someone, so to speak.

If someone feels published material seen by over one person has lowered their reputation in the eyes of the public, they have grounds to file a defamation case.

Geoffrey Rush and Sarah Hanson-Young
Geoffrey Rush and Sarah Hanson-Young have both filed for defamation.

One way of defending a defamation claim is by proving the truth of whatever claim that material is making.

“If you tell the truth about someone, that is a defence to defamation,” The University of Sydney Law School’s Professor David Rolph told SBS News.

“People are only entitled to the reputation they deserve, not the reputation they have.”

Another defence is the right to what is known as “fair comment” or “honest opinion”.

“If you express your opinion about a matter of public interest and it’s based on true facts, then you are entitled to the belief that you have,” Professor Rolph said.

High-profile Australian cases

Senator Hanson-Young and actor Rush are far from the first public figures to become embroiled in defamation cases.

Former Queensland premier Joh Bjelke-Petersen sued the Nine Network for $400,000 in 1986, while Jeff Kennett got the same amount of money from the Nine Network for when he was Victorian premier in the mid-1990s.

More recently, Australian actress Rebel Wilson sued Bauer Media for $4.7 million over articles she said damaged her career by depicting her as a liar. Her payout was later reduced by 90 per cent after appeal.

 Rebel Wilson walks out of the Court of Appeal on April 19, 2018 in Melbourne, Australia.
Rebel Wilson walks out of the Court of Appeal on April 19, 2018 in Melbourne, Australia.
Getty Images

Former Liberal MP Sophie Mirabella was earlier this year awarded almost $300,000 after she was found to have been defamed by a rural Victorian paper.

Can the average person be defamed or defame someone?

Yes and yes.

A study this year by the Centre for Media Transition at the University of Technology found just one in five plaintiffs in Australian defamation cases between 2013 and 2017 were public figures, and just one in four defendants were media companies. Over half the defamation cases (51 per cent) were digital, the study found.

“Social media platforms, which allow us to be publishers to the world at large, have increased the opportunities for people to damage the reputations of others in front of a much wider audience,” Professor Rolph said.

This shift has resulted in more everyday Australians getting caught in defamation cases, according to Maurice Blackburn Associate Lawyer Patrick Turner.

“There has definitely been a big rise in average, everyday people to seek some form of redress where people are making defamatory statements online,” Mr Turner told SBS News.

Social media is being blamed for more everyday Australians getting caught in defamation cases.
Social media is being blamed for more everyday Australians getting caught in defamation cases.
Tracy Le Blanc from Pexels

A former mayor in rural New South Wales was awarded more than $100,000 by a court last week after a local resident was deemed to have defamed him via Facebook posts accusing him of corruption and bullying.

A current councillor was ordered to pay $10,000 for commenting on the post and urging citizens to engage with it.

Who tends to win?

Professor Rolph said Australian law tends to favour defamation plaintiffs (the party making the claims) rather than defendants (who the complaint is made against).

“All the plaintiff needs to prove is that the defamatory claim has identified them in front of more than one person and that it is defamatory,” he said.

“The defendant has to prove the defamatory claim is true - it’s not up to the plaintiff to prove that the claim is false. Australian law also tends to presume claims are false.”

The ease in which a plaintiff can establish they have been defamed stands in contrast to the United States, Professor Rolph said.

“Because of their First Amendment (which protects freedom of speech, freedom of press and freedom of religion) defamation law is much more favourable to defendants of free speech and much less protective of reputation.”

How can I avoid getting caught up?

Simple: be wary of what you post online.

“The temptation can often be to vent on these platforms. But we are seeing an increase in defamation against ordinary citizens rather than big media players,” lawyer Mr Turner said.

“Be careful of what you say, share or tweet, particularly when someone can save a screenshot of what you’ve posted. Deleting the post might not absolve you.”

Someone who feels they have been defamed, or has been accused of defamation, should seek specialised legal advice, Mr Turner said.

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