television broadcast. Pictures as well as words can be defamatory.
Anything that injures a person’s reputation can be defamatory. If a comment brings a person into contempt, disrepute or ridicule, it is likely to be defamatory.
You tell your friends that the boss is unfair. That’s slander of the boss.
You write a letter to the newspaper saying a politician is corrupt. That’s libel of the politician, even if it’s not published.
You say on television that a building was badly designed. That’s libel due to the imputation that the architect is professionally incompetent, even if you didn’t mention any names.
You sell a newspaper that contains defamatory material. That’s spreading of a defamation.
The fact is, nearly everyone makes defamatory statements almost every day. Only very rarely does someone use the law of defamation against such statements.
Defences
When threatened with a defamation suit, most people focus on whether or not something is defamatory. But there is another, more useful way to look at it. The important question is whether you have a right to say it. If you do, you have a legal defence.
If someone sues you because you made a defamatory statement, you can defend your speech or writing on various grounds. There are three main types of defence:
what you said was true;
you had a duty to provide information;
you were expressing an opinion.
For example:
You can defend yourself on the grounds that what you said is true.
If you have a duty to make a statement, you may be protected under the defence of “qualified privilege.” For example, if you are a teacher and make a comment about a student to the student’s parents — for example, that the student has been disruptive — a defamation action can only succeed if they can prove you were malicious. You are not protected if you comment about the student in the media.
If you are expressing an opinion, for example on a film or restaurant, then you may be protected by the defence of “comment” or “fair comment,” if the facts in your statement were reasonably accurate.
There is an extra defence if you are a parliamentarian and speak under parliamentary privilege, in which case your speech is protected by “absolute privilege,” which is a complete defence in law. The same defence applies to anything you say in court.
Defamation law varies from country to country. My outline here is oriented to the Australian context where defamation law is considered fairly strict. Even within Australia, the things you have to prove to use one of the defences may not be the same in different parts of the country. For example, in some Australian states, truth alone is an adequate defence. In other states, a statement has to be true and in the public interest — if what you said was true but not considered by the court to be in the public interest, you can be successfully sued for defamation.
What can happen
You can be threatened with a defamation suit. You might receive a letter saying that unless you retract a statement, you will be sued.
There are numerous threats of defamation. Most of them are just bluffs; nothing happens. Even so, often a threat is enough to deter someone from speaking out or to make them publish a retraction.
Proceedings for defamation may be commenced against you. This is the first step in beginning a defamation action. Statements of claim, writs or summons shouldn’t be ignored. If you receive one, you should seek legal advice.
The defamation case can go to court, with a hearing before a judge or jury. However, the majority of cases are abandoned or settled. Settlements sometimes include a published apology, sometimes no apology, sometimes a payment, sometimes no payment. Only a fraction of cases goes to court.[1]
The problems
There are several fundamental flaws in the legal system, including cost, selective application and complexity. The result is that defamation law doesn’t do much to protect most people, but it does operate to inhibit free speech.
Cost
If you are sued for defamation, you could end up paying tens of thousands of dollars in legal fees, even if you win. If you lose, you could face a massive pay-out on top of the fees.
The large costs, due especially to the cost of legal advice, mean that most people never sue for defamation. If you don’t have much money, you don’t have much chance against a rich opponent, whether you are suing them or they are suing you. Cases can go on for years. Judgements can be appealed. The costs become enormous. Only those with deep pockets can pursue such cases to the end. If you have say $100,000 or more to risk, go ahead and sue. Otherwise defamation law is not
The result is that defamation law is often used by the rich and powerful to deter criticisms. It is seldom
