February 20, 2023

How to tell if I have a defamation case?


What is Defamation?

Defamation in NSW refers to a false statement that harms the reputation of an individual or a company. The statement can be made in various forms including spoken words, writing, gestures, or images. The person making the defamatory statement must intend to cause harm or must have been negligent in not realizing that the statement was false and would harm the reputation of the individual or company. If you are affected by the false statement, you can bring a civil lawsuit for damages. You need to prove that the defamatory statement was made, it caused harm to their reputation, and the statement was not protected by a defence such as truth or privilege.

The relevant legislation for defamation in NSW is the Defamation Act 2005 (NSW). This Act sets out the definition of defamation, the elements required to prove a claim of defamation, the defences available to a person accused of making a defamatory statement, and the procedures for bringing a defamation claim in court. The Act also provides for alternative dispute resolution options such as mediation, and sets out the time limit for bringing a defamation claim.

Am I eligible for a defamation lawsuit in NSW?

Whether you are eligible for a defamation lawsuit in NSW depends on the specific facts and circumstances of your case. To bring a successful defamation claim, you must be able to prove that:

  • The statement was published (made known to at least one other person);
  • The statement was defamatory, meaning it would lower your reputation in the eyes of a reasonable person;
  • The statement was about you;
  • The publication of the statement caused you harm.

If you believe that you have been defamed and meet these requirements, you may be eligible to bring a defamation claim in the courts of NSW.

If someone posts defamatory comments about me on social media, am I eligible for a defamation lawsuit?

Defamation can occur on social media platforms just as it can through other forms of communication. In NSW, a defamatory statement made on social media is subject to the same legal principles as any other form of defamation.

Which court should I file the defamation case in NSW?

In NSW, a defamation case can be filed in either the Local Court or the Supreme Court. The choice of court will depend on the value of the claim and the specific circumstances of the case.

Please refer to our article – which court should I start my case for more information.

What is the time limit to file the defamation case?

In NSW, the time limit to bring a claim for defamation is typically one year from the date the defamatory statement was first published. This is known as the statute of limitations.

If you miss the one-year time limit, you may be barred from bringing a claim for defamation. However, there are limited circumstances in which the time limit may be extended, such as where the defamatory statement was not immediately discovered or where there has been a delay in obtaining legal advice.

Does the defendant have any defence available?

In NSW, there are several defences available to a person accused of making a defamatory statement, including but not limited to:

  • Truth: The defendant can prove that the statement was true and therefore not defamatory.
  • Honest Opinion: The defendant can argue that the statement was an expression of their honest opinion, rather than a statement of fact.
  • Public Interest: The defendant can argue that the publication of the statement was in the public interest.
  • Qualified Privilege: The defendant can argue that they had a legal, moral, or social duty to make the statement, and the recipient had a corresponding interest in receiving it.
  • Innocent dissemination: The defendant can argue that they did not know and had no reason to suspect that the statement was defamatory, and that they were not the author, editor, or publisher of the statement.

How much compensation can I get if I am successful in the defamation case?

The calculation of compensation for a defamation case in NSW depends on a variety of factors, including the harm caused to the claimant’s reputation, the seriousness of the defamatory statement, and the circumstances in which the statement was made. There is no set formula for calculating compensation for defamation, and each case is considered on its own merits.
Compensation for defamation may take the form of both general damages, which are awarded for the harm caused to the claimant’s reputation, and special damages, which are awarded for financial losses resulting from the defamatory statement.

In determining the amount of general damages, the court will consider factors such as the nature and extent of the publication, the seriousness of the defamation, the prominence of the defamatory statement, and the impact on the claimant’s reputation.

Special damages may be awarded if the claimant can prove that they have suffered a quantifiable financial loss as a result of the defamatory statement. It is important to note that compensation for defamation may also include an award for aggravated damages, where the court finds that the defendant acted with malice or demonstrated a disregard for the claimant’s rights.

There have also been some recent amendments made under the Defamation Amendment Act 2020 which we will cover in another update.

Where to from here?

If you are considering litigation and are looking for assistance to determine whether or not you have a good cause of action, the importance of specialist advice is clear.

For a free, no obligation review of your current circumstances, simply
Call us now: 1800 893 836
Email us now: info@bizlawyers.com.au
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