The law of defamation protects individuals and certain corporations’ reputation. The law assumes that all people are of good character until the opposite is proved.
People may believe that they have been 'defamed' if someone says or implies something negative about their character to a third person but whether this is defamatory depends on factors such as its context and to whom it was said. Each case depends on its facts. Words and other matter (such as cartoons) can be defamatory by innuendo - that is, where the reader has to put two and two together to understand the defamatory meaning.
Generally, whether something is defamatory is to be determined on the basis of its 'natural and ordinary meaning'. The test of what is or is not defamatory depends on the standards of the community as a whole and not just of some narrow section or group.
However, there are circumstances, where publication is made to people whose special knowledge or expertise results in its bearing a special meaning (based on that knowledge or expertise) which may be defamatory of a third person.
The Defamation Act 2005 (SA) requires the aggrieved person to establish:
It does not matter whether or not the publisher of the material intended to refer to or disparage a particular person. It is generally enough if:
Statements that have caused or are likely to cause serious harm to a person's reputation are actionable for defamation. These statements can include social media comments, social media posts, or even online reviews. Harm to the reputation of an excluded corporation is not serious harm unless it has caused, or is likely to cause, serious financial loss. An excluded corporation is defined in section 9 of the Act, and is discussed further below in Who can be defamed?
It is not enough to establish that the publication caused only slight or insubstantial harm. ‘Serious harm’ to reputation is now a required element for a plaintiff to establish a cause of action. For individuals, whilst evidence of financial loss may potentially be relevant, it is not a necessary component.
Law in relation to Defamation
The law of defamation in South Australia is largely governed by the common law, supplemented by the Defamation Act 2005 (SA). The purpose of the law of defamation is to protect a person's reputation (generally by awarding damages for serious harm), while at the same time protecting the right to freedom of speech.
Major amendments to the Defamation Act 2005 (SA) commenced on 1 July 2021. These apply in relation to the publication of defamatory matter after the commencement of the amendments.
The information contained in this chapter has been updated to reflect the changes. All references in this chapter are to the Defamation Act 2005 (SA) unless stated otherwise.
Whilst section numbering varies, the legislation is uniform throughout the States and Territories of Australia.
Commencing Court Action
Importantly, see Time Limits.
Defamation actions tend to be time consuming and expensive. Delays in the Courts often mean that an action is decided long after the cause of grievance has been forgotten by all but the parties involved. At the end of a case a Court can only award monetary damages or an injunction, see Remedies. The Court cannot order an apology. An apology is a separate matter, see Apologies. Reliving hurtful events is stressful and the emotional trauma of defamation can seldom be cured by the satisfaction of winning a case or from compensation. Litigation should not therefore be commenced without careful thought and expert legal advice.
Generally, defamation proceedings cannot be commenced without the aggrieved person first issuing the publisher a concerns notice setting out the defamatory imputations [s 12B]. This allows the publisher 28 days to respond with an offer to make amends [s 14(2)(b)] or a request for further particulars, by giving the aggrieved person a written further particulars notice [s 12A(3)]. The aggrieved person has 14 days to provide the further particulars [s 12A(4)]. In the event that the aggrieved person fails to provide the reasonable further particulars within 14 days of receiving the notice for further particulars then it is taken that they have not published a concerns notice. If the aggrieved person provides further particulars after 14 days have already elapsed since giving the concerns notice, then the publisher has a further 14 days to respond with an offer to make amends [s 14(2)]. If the aggrieved person provides further particulars before 14 days have elapsed since giving the concerns notice, the period remains 28 days from the concerns notice [s 14(2)(b)].
The Court may give permission for proceedings to be commenced before the response period has elapsed if the plaintiff satisfies the Court that time limit to issue proceedings is about to expire or if it is just and reasonable to do so [s 12B(3)].
It should be noted that a defamed person may elect to (but is not required to) serve a pre-action document on the publisher prior to the commencement of defamation proceedings under the Uniform Civil Rules 2020 (SA). A pre-action document has additional requirements on both the aggrieved person and publisher to that of the Defamation Act.
Legal advice should be sought before commencing court action.
Public bodies, such as local government councils, cannot sue for defamation. People employed by, or elected to, government authorities may, however, be able to sue in defamation if their personal reputation has been damaged by a publication.
General groups (such as lawyers, doctors, people from a particular country, university students or the staff of a certain shop) cannot sue for defamation, unless the group is so small that a person could say she or he was readily identifiable. For example, defamatory words referring to senior management of a company might sufficiently identify a number of people so that they can all bring actions in defamation.
Any non-profit group or organisation that has a recognised legal status (such as a trade union or an incorporated association) can sue and be sued for defamation, but a group that is not a legal entity (such as an unincorporated association or a social club) cannot sue for damages or to protect its good name, even if its individual members can prove that they were defamed by a statement made about the group. Again, if the group is small enough to identify the individual members of the group and the statement affects their personal reputation, the individuals in the group may sue.
If an executive of an unincorporated club publishes a defamatory letter about a person, the person defamed can sue each of those involved in the publication of the letter. If a person says an unincorporated club is inefficient and corrupt, the people running the unincorporated club may be able to sue as separate individuals (if they are identifiable and their reputation has been affected), but in neither case can the unincorporated club itself sue or be sued. A group such as this, with no legal identity apart from its members, cannot sue to vindicate its reputation, see COMMUNITY ORGANISATIONS.
A company can be defamed, though only small or not-for-profit corporations can sue for defamation. These are called 'excluded corporations' under the Act. Excluded corporations are those which do not have the object of financial gain for members or corporators or which employ fewer than 10 people and which are not an associated entity of another corporation [s 9(2)]. An employee is defined as any individual (including an independent contractor) who is engaged in the day to day operations of the corporation other than as a volunteer, and is subject to the control and direction of the corporation [s 9(6)]. Part-time employees are taken into account as a fraction of their full-time equivalent. Companies, like people, have reputations that can be damaged. However, although companies can claim damages for loss of reputation (provided they have suffered reputational harm which has caused, or is likely to cause serious financial loss), they can get nothing for injury to feelings. It is said they have no feelings.
Persons or bodies who suffer damage from publications who cannot sue for defamation may be able to sue for injurious falsehood (see Other Remedies). To succeed in an action for injurious falsehood it must be shown that there has been a monetary loss suffered and that the statement is false and was made dishonestly or within intent to cause loss and without any lawful justification.
It is not possible to defame a dead person [see Defamation Act 2005 (SA) s 10]. However, costs for proceedings may be awarded if a plaintiff dies part way through proceedings, and the Court finds it is in the interests of justice to do so [s 10(2)].