My business is being defamed. Help!

These days, it seems there’s an opinion about everyone and everything – especially on the internet.

“Publication”, or more simply “communication”, of material that is likely to cause ordinary, reasonable persons to think less of, or shun or avoid a person defames that person.

To be actionable defamation, the “imputation” (or meaning) must cause damage to the plaintiff’s reputation. It is not sufficient that it is harsh or has hurt the plaintiff’s feelings.

From 2006, all States and Territories in Australia have identical defamation laws (commonly known as the Uniform Defamation Act (“UDA”)). Among other things, the UDA has abolished the long-standing distinction between slander and libel. All that a plaintiff must establish is that the publication/comment had a defamatory imputation.

Who can sue?

Any living person who believes they have been defamed (in Tasmania even the dead can sue!).

A company cannot sue for defamation unless it is a private body that employs fewer than 10 people and is not part of a corporate group or it is a not-for-profit company that is not a public body.

Larger companies have the option of using the lesser-known law of “injurious falsehood”. This is more complex than defamation as it not only requires statements to cause harm to the business, but also that they were false and made with malicious intent.

Who can be sued?

While it might seem unfair, it is well established that any person who plays a part in conveying the defamation will be held equally liable. This applies to the author, editor and owner of a newspaper; or the author of an online post, the owner of that online forum and the ISP that hosts the server. But it’s not all beer and skittles, there are some defences that a court may accept.

Defences

Possible defences to an action for defamation may include:

• Honest opinion. The comment is an expression of opinion rather than a statement of fact; the opinion related to a matter of public interest and the opinion is based on proper material.
• Triviality. The circumstances of the publication were such that the aggrieved person was unlikely to sustain any harm.
• Innocent dissemination. The defendant acted as a subordinate distributor (eg. an ISP) and did not know or could not have reasonably known that the matter was defamatory and this lack of knowledge was not due to negligence.
• Truth/Justification. The statements were substantially true or could have alternative meanings that are substantially true.

Right, let’s go then!

Legal proceedings can be expensive, difficult and take a long time to resolve. There may be other options to address your concerns.

So what can I do?

First, consider starting a targeted positive news campaign.

Second, a strongly worded lawyer’s letter may persuade the author/publisher to remove the harmful comments.

Third, investigate alternative dispute resolution options, such as mediation.

Please note that this information is a basic summary for general guidance only. It is not a substitute for professional legal advice.

Piquet Kruzas is a lawyer and experienced management trainer.