As the high profile defamation case launched by Geoffrey Rush against The Daily Telegraph continues you may be wondering, ‘what is defamation’?
In the matter before the Federal Court, the actor is suing News Corp over a front page news story which accused him of inappropriate behaviour towards a younger unnamed female cast member, later revealed to be Eryn Jean Norvill.
Defamation arises when a false comment is published (in a public forum, such as a newspaper, or in an electronic or print communication to more than person, such as in a group email) and that comment has harmed the fame or reputation of a person in the community and caused damage (financial loss) to that person.
Defamation Defences
– Parliamentary and legal privilege (comments made during legal proceedings)
– Qualified privilege (legal, social or moral duty to make the statement)
– Honest opinion or fair comment
– Innocent dissemination
– Triviality (so ambiguous or frivolous, it is to be taken as trivial)
– Justification (substantially true)
– Public interest (critical to policy, governance or public safety)
The newspaper is relying on the defence of qualified privilege after Justice Michael Wigney rejected its truth defence.
The newspaper has argued its article, titled ‘King Leer’, was in public interest due to recent sexual assault accusations against Hollywood Director Harvey Weinstein and the associated global #MeToo movement.
Defamation Damages
If Rush is successful, like any applicant in a defamation suit, he could be awarded general damages, which are capped according to a national regime.
These non-economic damages are to remedy the damage to the plaintiff’s reputation and his or her hurt feelings and are currently capped at $389,500.
Economic losses can be difficult to prove in defamation cases.
Most defamation cases involve an award of general damages plus a small award of aggravated damages.
Aggravated Damages
Aggravated damages are possible if it is proven the newspaper was motivated by harm and purposely went out of its way to defame the actor.
In a landmark payout in September 2017, actress Rebel Wilson was awarded a record $4.7m after she was defamed by Women’s Day, who wrote several articles accusing Wilson of lying about her age, real name and upbringing.
Wilson was left with less than 12% of the payout, because Fairfax, News Corp and the ABC joined the suit and appealed to have the damage bill reduced.
However, it’s not just the just media outlets that can be sued for defamation.
Social Media Defamation
Individuals regularly defame one another on social media and Attwood Marshall Lawyers’ commercial litigation department often receives inquiries from people concerned about defamatory social media posts.
If someone defames you on social media you could sue them for damages.
In a November 2017, the Supreme Court of South Australia awarded a member a community shooting club $90,000 in damages from another member who published website posts, Facebook posts, and sent emails suggesting another member of the club was corrupt, a bully, a thug and a liar.
Other Helpful Defamation Remedies
Other helpful remedies may include orders for formal written apologies, removal of the comments or posts, or court injunctions to prevent someone from making further comment.
Five things to do if you think someone has defamed you on social media:
1. Act Quickly
You only have one year from the date of a defamatory post to launch your defamation proceedings.
2. Take Photos of Your Evidence
Take a screen shot, copy or print the contents of an offending post, including all the words and photos which accompany it.
Capture any ‘shares’, ‘likes’, or comments made by other social media users in relation to the post.
Any interactions you have with other people in relation to the post should also be captured.
Every piece of evidence will help your lawyer to understand and build your case.
If a post has been deleted, a lawyer can help you to subpoena the post from the social media platform which hosted it.
3. Financial Impacts
As mentioned earlier, demonstrated economic loss can be an important part of a defamation case.
A reduction in trade, job opportunities or contracts has to be proven with financial data and other evidence from your business.
4. Don’t Argue
Do not argue with a person who has defamed you on social media, because in the heat of the moment or from stress you may make a defamatory comment yourself and find yourself on the receiving end of a defamation suit.
5. Report to Facebook, Twitter or Instagram
Most social media platforms now have extensive policies to keep users safe from defamation. You can report individual posts, and you can also block users to protect your privacy.
Attwood Marshall Lawyers – a dedicated team that practice exclusively in commercial litigation
We have an experienced dedicated Commercial Litigation team to assist you with defamation claims and can guide you through the legal process. We will help you protect your personal and professional reputation.
If you are involved in a dispute over defamation and would like to find out where you stand, contact our Commercial Litigation Department Manager, Amanda Heather on direct line 07 5506 8245, email aheather@attwoodmarshall.com.au or free call 1800 621 071.
