What Is Defamation And How Do You Prove It?


August 13, 2017


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While we all have freedom of speech, the law also recognises a need to protect a person’s reputation and privacy.  The law of defamation achieves this by allowing a person to take legal action in respect of harmful statements which have been made about them in certain circumstances.

Defamation is a civil legal action whereby someone can seek monetary damages from another person who has made statements that harms their reputation or makes others think less of them. Defamatory statements can be communicated via a broad range of mediums including: verbal remarks, printed articles, photographs, videos, posted comments on social media or website content.


Who Can Bring A Defamation Action?

Generally, the right to bring an action in defamation is only open to individuals. Government organisations and most corporations cannot sue to defend their reputations, however their individual members can.


How To Prove You Have Been Defamed

If you wish to seek compensation from someone who has damaged your reputation with defamatory remarks, you will need to file legal proceedings in court. In order to succeed in your case, you will need evidence to prove three things:


The Communication Was Made

Firstly you will need to prove to the court that the defamatory comment has been communicated to at least one other person besides you. If remarks have only be made directly to you by the defendant, there can be no damage and therefore no action in defamation.

The communication can be via spoken words, written words, videos, photographs or drawings. If the publication was in written form you will need to obtain a copy of it. If it was online, ensure that you take a screenshot on your computer or phone as soon as you discover it.


The Communication Identifies You

You also need to prove that the communication identifies you either by name or by some other details which would enable recipients to figure out it is about you. For example, a communication may identify you personally by your current title or job description.


You Have Suffered Damage To Your Reputation

Finally, you will need to show that the communication is of a defamatory nature. This means that what was said must be damaging to your reputation or would cause an ordinary person to ridicule or think less of you.  This includes the ordinary meaning of the words as well as any implications or innuendo that they contain.

If you can show tangible evidence that others have shunned you or treated you differently as a result of the communication, this will be helpful to your case.


Are There Defences To An Action For Defamation?

Even if you can satisfy all of  the above elements, you may lose in court if the other party has a defence to defamation. Recognised defences include circumstances where the defamatory remarks are:

  • substantially true,
  • made in the course of legal or parliamentary proceedings,
  • not motivated by malice but are an honest report on circumstances the recipients had an interest in,
  • an honestly held opinion of the defendant; or
  • simply trivial.


What To Do Next If You Have Been Defamed

Defamation proceedings must be commenced within one (1) year of the date of publication. It is therefore recommended that you seek reliable legal advice as soon as possible if you think you have been defamed.


Contact a lawyer now to discuss your situation.