Criminal Law

I Think I’ve Been Defamed. What Are My Options?

If someone posts nasty material about you on social media or other publications you may be able to take action through defamation laws, writes TGB's Amber Sprague.

If someone posts nasty material about you on social media or other publications you may be able to take action through defamation laws, writes TGB’s Amber Sprague.

The law of Defamation in South Australia is governed by the Defamation Act 2005 which sets out the process for someone to pursue a defamation action as well as the various defences available to the person making the defamatory comment.

Previously there was a distinction between slander being verbal defamation and libel being written defamation.  Since the Defamation Act was enacted, the distinction between slander and libel is abolished and defamation is the term now used.

Defamatory material needs to have been published but not necessarily widely to be actionable.

Publication can include telling something to someone else to a group of other people, writing something and sending it or posting it on the internet, broadcasting something on TV or radio and various other forms.  It is generally the case that the wider the publication the greater the damages that could possibly be awarded by a Court, but that also depends on the extent and the severity of the defamatory material that has been published

If something which you think is defamatory is published about you, you have the option to bring defamation proceedings.  The first step is to write to the person who published the defamatory material and ask them to make amends, generally by asking for a retraction of the defamatory material to be published as well as an apology and possibly also the payment of damages.   This is called requesting the publisher to ‘make amends’.  If the publisher of the defamatory material refuses to make amends then further action can be taken in court.  If the publisher of the defamatory material does make amends as requested, you still have the option of taking court action but your access to damages and costs in your court action may be reduced.  If you do take court action and are successful, damages can be awarded and will be calculated having regard to how much harm has been caused to you by the material being published.

There are also a number of defences available under the Act.  The publisher of the defamatory material can assert that the material that they published is in fact not defamatory due to it falling into one of the defence categories, some of which are:, defence of justification (it is true); defence of absolute privilege (related to parliament or court proceedings); defence of qualified privilege (related to the reasonable publication of information that the recipient has a genuine interest in receiving), defence of honest opinion (the honest opinion of the publisher and in the public interest), defence of triviality (so trivial it couldn’t be believed and no harm could be done).

Accordingly, if someone publishes something about you which you believe defames you and causes damage to you and/or your reputation, particularly on the internet you most certainly should not publish something back to them on the internet but
rather seek legal advice in relation to whether you have an action against them.  A revenge response can get you into just as much trouble as the original post can for its publisher.

You should also think twice about everything you post and in paticular ensure that your privacy settings on your computer and social media pages are appropriate.  Whilst a post on the internet might be removed, it is never really deleted and defamation proceedings arising from comments made on Facebook and Twitter are becoming more common.

For further information or advice about a defamation matter contact your nearest TGB location