What is online defamation?

Online defamation (also known as libel) refers to a false and unprivileged statement that is harmful to someone’s reputation and is published “with fault”, meaning as a result of negligence or malice.

How can I establish defamation?

The elements that must be proved to establish defamation are:

  1. a publication to a third party;
  2. a false statement of fact;
  3. that is understood as
  4. being of and concerning the plaintiff (the person defamed); and
  5. harming the reputation of the plaintiff.
  6. each time there is such a publication, the plaintiff has a new cause of action (right to sue).

Examples:

The following are examples of defamation:

  1. A statement which may cause a person to be hated or despised, or cause them to be treated with contempt by their peers;
  2. The publication of material that renders a person to ridicule, even if involving humour. The publication of a photograph that contained an optical illusion giving the appearance that someone was guilty of indecent exposure;
  3. Certain caricatures have been held to be defamatory. Determining what is defamatory is notoriously difficult in these matters. The distinction between artistic freedom and defamation will no doubt remain the subject of litigation.

Who is able to be sued for online defamation?

Defamation action may be brought, not only against the original publisher (writer), but also against anyone who takes part in the publication or re-publication of the material. Furthermore, re-publication by someone other than the original writer may result in an action against the original writer as well as the re-publisher.

Are there any defences against online defamation?

Defences that may be successfully pleaded in relation to defamation include:

  • Truth/justification
  • fair comment (e.g. an expression of an honestly held opinion or a criticism on a subject matter of public interest)
  • absolute privilege (this attaches to the occasion, not the statement or speaker, such as during parliamentary proceedings, judicial and quasi-judicial proceedings, executive communications and communications between spouses)
  • consent (e.g. where the plaintiff expressly or impliedly consented to the publication of the particular statement)
  • triviality (e.g. where the circumstances/occasion of the publication were trivial to the extent that the person defamed was not likely to suffer harm)
  • innocent dissemination (e.g. applicable to re-publishers/re-distributors such as newsagents/book sellers, including potentially to Internet Service Providers/Content Hosts).

How can Internet Law help?

When people say or write lies about you, or as we see more commonly these days, publish lies about you on the internet, substantial damage can be caused. Defamation is a demanding area of law that demands precise and specialised legal advice. If you would like to speak to an experienced lawyer regarding help with a defamation issue, enter your legal question on the Internet Law website now and we will select the most suitable lawyer to personally assist you with your enquiry.

Contact us with your enquiry today!