You may often hear the terms ‘libel’ or ‘slander’ used in the media. These are both actionable torts that have caused damage to a person’s reputation. However, you won’t hear these terms used inside the legal industry in Australia. This is because you can’t technically sue someone for libel or slander in Australia, as these legal actions no longer exist. Instead, they both fall under the term ‘defamation’. In this article, we’ll discuss how libel and slander operate under modern Australian Defamation Law.

Libel and slander are effectively the two ‘branches’ of defamation. Libel refers to defamation that occurs in print, and slander refers to defamation that occurs in speech. Although this distinction still exists in the United States, it no longer exists in Australia and hasn’t for some time. The Defamation Act 2005 (Cth) abolished slander and libel. The broader claim for defamation covers both, but the requirements to be successful in each claim differ slightly.

Libel and slander

The significance of these terms in Australia are largely historical. The term libel derives from latin, meaning ‘small book’. The torts of libel and slander developed in the English legal system, and are still part of the broader tort of defamation in the United Kingdom.

Written Defamation

The equivalent of libel, written defamation involves defamatory statements made in writing, or in ‘permanent form’. This can include communications such as emails and group messages or publications such as books, online posts or news articles.

For a defamation claim to be successful, the plaintiff needs to prove:

• Publication
• That a third party saw or heard the publication
• That the publication caused reputational damage

Spoken Defamation

Formerly known as slander, spoken defamation whilst suable, can be harder to prove than written defamation. In this instance, it is likely that a plaintiff will have to get witnesses to testify firstly, as to what was said, and secondly how what was said influenced their opinion of the plaintiff. Spoken defamation may also be harder to prove if there is no recording of what was said.

In Australia, the onus is on the defendant to prove that they did not defame the plaintiff. A defendant has multiple defences they can rely upon, including justification (truth) and privilege (both qualified and absolute).

A uniform system

In the United States, defamation laws are legislated by the states. In Australia, defamation laws have been nationalised, with each Australian state adopting the Defamation Act 2005 (Cth). This means that laws relating to libel and slander will vary in the US from state to state, whereas in Australia the national framework means that defamation laws are substantially the same throughout Australia. Although libel and slander are commonly used terms in US law and culture, they do not exist in Australia. Both written and spoken defamation are actionable torts and have the same defences. If you wish to make a claim for libel or slander, it will be a claim for defamation and you should consult with an experienced defamation lawyer.

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