Defamation is basically any publication that has the potential to tarnish your personal reputation. If you run a business, being defamed can cause real damage. This can be by competitors or even false customer reviews. Taking action against someone for defaming you can involve not only monetary compensation, but also a retraction which can prove even more meaningful to your business. However, legal action for defamation does often end up in Court, in the event that a cease and desist letter isn’t effective. In this article, we’ll explain how defamation can be proven.

Who Can Sue?

Individuals have a right to sue if they are defamed. However, this right is subject to a limitation period of 12 months after the publication of the defamatory material. This means that if the publication which has defamed you happened more than a year ago, then you will not be able to take any legal action over it.

Furthermore, not all corporations can sue. According to Section 9 of the Defamation Act 2005 (NSW), only excluded corporations have the right to sue. To clarify, excluded corporations can be one of two things. Firstly, they can be non-for-profit organisations. Secondly, they can be corporations that employ less than 10 people and are unaffiliated with other corporations. Many small businesses fall into this camp, meaning that they are able to take legal action for defamation in the Courts.

How Can I Prove Defamation?

If you are an individual or an excluded corporation, you can potentially prove defamation if you are able to demonstrate the following:

  1. There was a publication communicated between at least two people (excluding you), whether written or verbal
  2. The publication identifies you, or does so with a connotation significant enough to identify you
  3. The publication is of a defamatory nature and is not true. In other words, the publication has the potential to undermine your public reputation and therefore, negatively influence either your personal life or business operations.

If Someone Sues You for Defamation

If someone sues you for defamation, you should check with a defamation lawyer whether there are any defences to the plaintiff’s claim that apply to your situation. For example, you can find available defences under Division 2 of the Defamation Act 2005 (NSW). These defences include:

  • Justification (Section 25)
  • Contextual Truth (Section 26)
  • Absolute Privilege (Section 27)
  • Publication of Public Documents (Section 28)
  • Fair Report of Proceedings of Public Concern (Section 29)
  • Qualified Privilege for Provision of Certain Information (Section 30)
  • Honest Opinion (Section 31)
  • Innocent Dissemination (Section 32)
  • Triviality (Section 33)

Providing a strong defence to a defamation claim can be an arduous process, and requires the expertise of an experienced lawyer.

Conclusion

The success of your business is heavily reliant upon the public image of your business. Therefore, it is of critical importance that you take the necessary steps to equip yourself with the relevant legal information that can help you prevent defamation from hurting your business.

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

Eric Zhang

Eric currently works in the content team as a legal intern for Lawpath. He is in his final year of a Bachelor of Commerce with a Degree in Bachelor of Laws (Majoring in Finance).