In last week’s article, we explored what defamation is and what the law requires to bring a claim. In this article, we discuss who can be liable, the potential defences to a claim, what remedies are available if you do issue a claim, potential defences and alternatives to a defamation claim.
Who can you claim against?
Any individual, company or legal entity involved in the publication of defamatory content can be pursued in libel or slander. This includes the author, editor or distributor, including website owners and Internet Service Providers.
Potential defences to defamation claims
- Truth: is a complete defence to a claim in libel or slander. The defendant must be able to show that the allegations they have published are substantially true. The burden is on the publisher to prove that they were true, rather than the claimant to show that they were false.
- Honest Opinion: this defence requires the publisher to show:
- That the statement complained of was an expression of opinion;
- That the statement complained of indicated the basis of that opinion; and,
- That an honest person could have held the opinion based on any fact, which existed at the time the statement was published.
The defence is defeated if the claimant can show that the defendant did not hold the opinion.
- Publication on a matter of public interest: the defendant must show the statement complained of was, or formed part of, a statement on a matter of public interest and that the defendant reasonably believed that publishing the statement complained of was in the public interest, having regard to all the circumstances of the case.
- Privilege: this defence seeks to protect statements made where public policy requires people to be able to speak freely. There are two standards of privilege: ‘absolute’ and ‘qualified’. Absolute privilege protects statements such as those made in Parliament. Qualified privilege is lesser and arises when the person making the statement has an interest or duty, socially, morally or legally to make it, such as job references. Where the privilege is only qualified, the defence will be defeated if the claimant can show that the statement was published maliciously.
- Consent: once given, excludes the individual subject from bringing a claim for the alleged defamatory statement.
- The operator of a Website: if a website operator can prove that he/she did not post the content themselves, this can be a defence. However, the defence can be defeated.
Successful defamation actions can be settled either before or during court proceedings. Remedies differ depending on how the matter concludes, but can include:
- An apology and an undertaking from the publisher not to repeat the allegations (if settled out of court);
- Compensation (which will vary depending on the gravity of an allegation, the extent of serious harm caused and other such factors);
- An injunction (court order) preventing further publication.
- Payment towards legal costs.
Alternatives to a defamation claim
The first step in defamation is a letter of complaint, which may of itself allow the parties to resolve the issues without going to court.
Other potential claims include negligent misstatement or malicious falsehood.
All our articles are intended for informational purposes only and do not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information provided.