How to bring an action for defamation

Introduction

You may decide to bring an action in defamation if you believe that a person or publication has harmed your reputation by making false statements about you. The law setting out this right of action is contained in the DEFAMATION ACT 1992 and in a long history of case-law (decisions from the courts).

Defamation law attempts to maintain a balance between freedom of expression and the protection of people's reputations.

What do I have to prove for my claim to be successful?

To bring a successful defamation action you (the "plaintiff") will need to establish the following elements:

  • The statement must have been defamatory of you.
  • The statement must have been communicated to one or more people – in other words, there must have been "publication".

You do not have to prove that you suffered any specific damage or loss, as the law assumes that you have suffered loss if a statement is defamatory of you.

However, the rules are slightly different if you are a body corporate, in which case you must prove that the defendant has caused, or is likely to cause you monetary loss.

What is a defamatory statement?

The courts have given a number of different definitions of what is "defamatory", including a statement that tends to lower a person in the estimation of right-thinking members of society, or that tends to cause the person to be shunned or avoided, or that tends to cause the person to be exposed to hatred, contempt or ridicule.

The particular words used are assessed in their context, but examples of what have been considered to be defamatory statements are:

  • claims or suggestions of anti-social behaviour
  • claims or suggestions of fraud or dishonesty, or of incompetence

If it is found that the words do convey a defamatory meaning, the defendant will be liable even if this was not intended.

What defences might be available to the defendant?

There are a number of defences available to someone who is being sued for defamation, including:

  • that the statement was true ("truth" or "justification")
  • that it was a statement of honest opinion on a matter of public interest ("honest opinion" or "fair comment"), or
  • that the statement was "privileged" in some way

For a fuller discussion of these defences, see How to defend a defamation action.

What remedies are available to me?

There are a number of possible remedies available to you:

  • compensatory damages – that is, money to restore you to the position you would have been in if the statement had not occurred and your reputation had not been damaged
  • an injunction to stop further publication
  • a correction or a retraction
  • In certain cases a plaintiff might also be awarded punitive (or "exemplary") damages, which are intended not to compensate the plaintiff but to punish a defendant who has acted in flagrant disregard of the plaintiff's rights.
Cautionary notes
  • It is advisable that you seek advice from a lawyer if you wish to sue for defamation. Your lawyer will be able to assess the strength of your case, including whether the other party has any strong defences available to him or her. Your lawyer will be able to investigate whether a satisfactory settlement can be reached with the other party before a costly trial process is begun.


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