Defamation Unravelled

There is no finite test to determine what is considered defamatory. A defamatory statement may be defined as one that is likely to cause an ordinary reasonable person to think less of the aggrieved person or shun, ridicule or avoid them. A further test that may be applied in some cases is whether the words have the tendency to lower the person in the eyes of reasonable members of the community.

The law as to defamatory imputations look only to its tendency to damage, and need not have an affect on the persons reputation. As such, no direct financial loss need be shown.

A statement can convey defamatory meaning in three ways:

1. On the natural and ordinary meaning of the words;
2. False innuendo (reading between the lines); and
3. True innuendo (the natural and ordinary meaning of the words read in light of other facts not referred to in the publication, where at least one person in receipt of the publication knows those facts).

The Concerns Notice

The first step if you believe that you have been defamed, is issuing a concerns notice to the publisher of that defamatory material.

Pursuant to section 14 of the Defamation Act 2005 (Qld) (Act), a concerns notice acts similarly to a letter of demand, requesting that certain action be taken, to make good in order to avoid the dispute progressing to litigation.  The formal requirements of a concerns notice under the Act, include:

1. that the notice be in writing; and
2. that it informs the publisher of defamatory imputations (inferences) that an aggrieved person considers arise from the publication.

More particularly, the concerns notice may include the date on which the defamatory statements were published and who they were published to, what those statements were along with the defamatory imputations that stem from the publication of those statements, and the remedy sought.

In the case that the concerns notice fails to adequately particularize the imputations of concern, the publisher may issue a notice in writing requesting further particulars. This is to be provided by the aggrieved within 14 days, otherwise the concerns notice is considered not to have been issued for the purpose of section 14 of the Act.   

Offer to Make Amends

Within 28 days of receipt of a concerns notice, the publisher may make an offer to make amends to the aggrieved person, either in relation to the matter generally or limited to particular defamatory imputations which the publisher accepts as arising from the publication. The offer must include certain things, such as (but not limited to) an offer to publish a reasonable correction, and payment of expenses reasonably incurred.

An offer to make amends is made on a without prejudice basis and accordingly is not admissible in any legal proceeding. Further, failure by the aggrieved person to accept an offer creates a conditional defence pursuant to section 18 of the Act. Conversely, if the offer is accepted by the aggrieved person, that acceptance acts as a complete bar to any future legal proceedings.

Defences

The Act provides for a number of defences available to a publisher, including:

• substantial truth and contextual truth - section 25 and 26 of the Act;
• absolute privilege (in the case of proceedings of parliament, or a Court or tribunal) – section 27 of the Act;
• qualified privilege – section 30 of the Act;
• honest opinion – section 31 of the Act;
• publication of an extract or copy of a public document – section 28 of the Act;
• fair report of proceedings of public concern – section 29 of the Act;
• innocent dissemination (e.g in the capacity of an employee or agent) – section 32 of the Act; and
• triviality – section 33 of the Act.

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