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Defamation Law in Australia: 5 Things You Need to Know

Defamation Law in Australia: 5 Things You Need to Know

Defamation cases are on the increase, particularly in the wake of social media. Read more to find out how it works in Australia

3rd October 2018

1. It’s national

Defamation Law in Australia operates as a national uniform law, meaning that each state in Australia has adopted laws which reflect the national standard. The Defamation Act 2005 (Cth) codified the existing laws in each Australian state, although there are some minor differences. This also means that there are little to no boundaries on what state proceedings can be commenced in.

A person who has been defamed in a publication that is published in Western Australia, where the writer lives in Queensland, can start proceedings in either of those jurisdictions.

2. There is no distinction between libel and slander

The Defamation Act 2005 (Cth) brought with it a slew of changes to the existing Defamation Law in Australia, with the most notable being the distinction between libel and slander being abolished. Although this distinction still exists in the United States, if you are the victim of slander or libel it is part of the broader defamation umbrella.

3. Proceedings can be commenced in different Courts

Although we have already covered that defamation proceedings can be commenced in different states, they can also be commenced in different courts. In New South Wales, the Federal Court, New South Wales Supreme Court and the New South Wales District Court all have jurisdiction to hear defamation cases. Historically, some people have favoured going to the Federal Court over the state courts as there is an option to choose whether the case is heard by a Judge or Jury.

4. The onus is on the defendant to prove that they did not defame the plaintiff

In contrast to criminal law, and even civil law in general, the burden of proof falls to the defendant to prove that they did not defame the plaintiff. If you have been served with proceedings, you will need to prove one of the following defences:

  • Truth or Justification
  • Honest Opinion or Fair Comment
  • Absolute Privilege
  • Qualified Privilege
  • Triviality

5. It covers social media

Defamation Law in Australia applies to comments, conversations and posts made on social media, just as they do any other publication, but some argue that this goes too far. There have (particularly in NSW) been many cases where someone has been sued for defamation over a trivial, or ‘throwaway’ comment made on social media. Further, you can also be found to have defamed someone if you share a post on social media that defames them.

Conversely, defamation can be harder to prove when it has occurred on the internet as many people post and have anonymous online identities. Perhaps you have noticed when looking at reviews on websites or controversial blog posts that the poster goes by an alias – this is to disguise their identity should someone or a business feel that they have been defamed, and without an identity, there is no defendant.

Social media-based defamation cases have become so commonplace, and such a problem that the NSW State Government has commenced a review of defamation laws, as traditional cases have been eclipsed by more trivial ones. In this sense, it is quite possible that defamation laws will be amended to account for social media, and the ability of citizens to now be publishers. However, change will only come about when all the States agree and the national law itself is amended – which could take many years. In the meantime, you can never be too careful about what you post and share on social media, especially if it concerns someone else. If you are concerned that something you have shared or posted may be defamatory, a defamation lawyer can provide detailed advice.

Don’t know where to start? Contact us on 1800 529 728 to learn more about customising legal documents and obtaining a fixed-fee quote from Australia’s largest lawyer marketplace.

Jackie Olling

Jackie is the Content Manager at Lawpath and manages the content team. She has a Law/Arts (Politics) degree from Macquarie University and is an admitted solicitor in the Supreme Court of NSW. She's interested in how technology can help shape the future legal landscape.