What is Defamation?

Defamation is not merely the utterance or publishing of an insulting word. Defamation is when negative and false words are published about a person or business that affects their reputation and livelihood. This is based on the idea that people are the sum of their reputations, and that legal remedies should be available if this reputation is damaged by something untrue.

Defamation can take many forms – it can be words said in front of other people, a circulated letter or email, or even a social media post. It is interesting to note that with the rise of social media, so too have the amount of defamation cases in the Courts.

What is a Defamation Lawyer?

Defamation lawyers assist where something that is published or spoken significantly damages someone’s reputation (known as the ‘matter complained of’). However, the defamatory publication must:

• Have occurred within the last 12 months (this is known as the limitation period);
• Been published to a third party;
• Damage the reputation of the person who has been defamed;
• Must not be substantially true.

A defamation lawyer will be involved in issuing a preliminary legal letter and commencing and/or defending the claim for defamation. Specifically, they will be primarily involved in the preparation of the case, pre-trial negotiations and advising you on the best step forward.

Why do I need a Defamation Lawyer?

The area of defamation law is complex due to the specific requirements at law and the difficulty in negotiating damages, especially if the case needs to go through the court system. Defamation is fundamentally based on the effect of words, and is highly technical. There are also a number of defences that can be raised to a claim for defamation.

Whether you wish to make a claim for defamation or defend a claim, a defamation lawyer is required to make sure the case is conducted the correct way.

What will a Defamation Lawyer provide?

Lawyers experienced in defamation law will provide you with expert advice with the goal that your interests and rights are protected. They are able to provide their services to both those who have had their reputation damaged, as well as those that need to defend a claim. It’s worth noting that in defamation proceedings, the onus is on the defendant to prove that they did not defame the plaintiff. It has been said that defamation cases therefore carry a presumption of ‘guilty unless proven otherwise’.

How will I know if I need a defamation lawyer?

Defamation claims often don’t begin the Courts. Prior to commencing proceedings, it is common for a person who has been defamed to issue a concerns notice. A concerns notice outlines the defamation that has occurred and makes a request for a specific action to remedy the situation. This can be by way of compensation, an apology or other action to ‘undo the damage’.

If the concerns notice isn’t complied with within a certain amount of time (normally 28 days), then the person who issued the letter can commence proceedings.

Prior to commencing proceedings, a cease and desist letter can also be issued. A cease and desist letter requests that a certain action stop being taken (for example, Facebook statuses that are defaming someone) and if this isn’t done, then proceedings will be commenced.

What’s the difference between a concerns notice and a cease and desist letter?

A cease and desist letter and concerns notice are similar in some ways, but have one large difference. They are similar in that:

• They both request the recipient to take a certain action;
• They make the reader aware that legal proceedings may be commenced if that action isn’t taken.

However, concerns notices are unique to defamation in that they ‘invite’ the recipient to rectify the matter before it goes to Court. If a recipient ‘makes good’ on the request in the concerns notice (for example, paying $2,000 and issuing a public apology) then the plaintiff has no recourse to pursue this at Court, as this is a type of settlement.

Where do I find the law on defamation?

Defamation is a unique area of law in that is is a ‘uniform law’. This means that there is a standard act (Defamation Act 2005) which applies to all States and Territories in Australia, and each State and Territory has adopted its own equivalent. There are minor differences in each State legislation, so it’s important that the lawyer you hire be aware of the specific requirements for the relevant legislation.

Libel and slander

Although many people still refer to defamation through the terms libel and slander, they were both abolished when the Defamation Act 2005 was introduced. Defamation covers both of these, libel being written defamation, and slander defamatory words that are conveyed verbally.
Although libel and slander are still used in some overseas jurisdictions (such as the United States), this is no longer the case in Australia.

Where are proceedings heard?

Defamation proceedings can be heard in one of the following Courts:

• Intermediate Courts of a State or Territory (i.e. District and County Courts);
• Supreme Courts of a State or Territory
• The Federal Court of Australia

The Federal Court is quickly becoming the preferred Court, especially for cases that are of a public nature. This is because a plaintiff can elect whether to have the trial heard by a Judge or a Jury. In the other Courts, trials are run on a Judge-only basis.

How much will a Defamation Lawyer charge?

As defamation is a niche area of law, the costs are usually higher than regular matters because of the level of work and negotiation that needs to be completed.

If your defamation matter is not in the Court system, a defamation lawyer may charge you a fixed-fee amount to review your matter and take early steps. This can include issuing a cease and desist letter or a concerns notice.

Hourly rates and Court fees

Defamation cases will sometimes end up in the court system, therefore costs will include not only the hourly charge by a lawyer, but also the appearance costs to the court. Hourly rates differ amongst lawyers, but there are lawyers who provide their fees ‘on-spec’ or on a ‘no win no fee’ basis. This can be an attractive alternative if you want piece of mind at the conclusion of your matter.It’s also wise to bear in mind that in civil proceedings, even if you are successful, you will only recover approximately 70 to 75% of the legal costs you have paid.

What can a lawyer legally charge?

Costs can rise very quickly in litigation. However, this is sometimes hard to avoid when work is being done by a lawyer on an hourly basis. Where fixed-fees are not offered by the lawyer, you should expect to be invoiced on a monthly basis. Lawyers are required to adhere to the rules outlined in the relevant acts. For example, in NSW and Victoria, this is the Legal Profession Uniform Law 2014.
Lawyers are required to provide to their clients a document called a ‘costs disclosure’ if your costs will be higher than $750.00. This document will outline how costs will be calculated in relation to your case. Also be mindful that costs are divided into ‘professional costs’ and ‘disbursements’, and you will be expected to pay for both. Professional costs are the costs of the actual work done by the lawyer, whilst disbursements cover incidentals such as court filing fees, telephone calls, photocopying charges – amongst other things.

What if I don’t agree with the costs?

You have the right to request an itemised bill that will outline how much time was spent on each task in relation to your matter, and how this adds up to the fee you’re requested to pay. If you wish to dispute the cost, you can make a complaint to the The Office of the Legal Services Commissioner (OLSC) and they will investigate the matter and may allocate a costs assessor. You can also take further legal action in the Courts if you feel you have been unfairly charged.

Useful reading:

• What Is Defamation?
• Can I Sue Someone for Posting a Defamatory Review of my Business?
• Defamation Law in Australia: 5 Things You Need To Know
• What to do when you Receive a Concerns Notice