Defamation
3. If You Have Been Defamed
Authors: Staff Legal Eagle
Firm / Chambers:
Last updated: 16 Jul 2015
- The first step is to examine the content. Look carefully at the information which was published and ask yourself these questions:
- has it been published to a third party? Keep in mind that the third party cannot include you or the person publishing the content. Published content can include:
- books;
- newspapers;
- on television or radio;
- in a speech;
- in an email or letter;
- social media including Twitter, Facebook or YouTube; and
- blogs and similar methods of publishing information on the internet.
- is the content about or pointing towards you? If the content does not specifically identify you as its subject you need to be able to show that people will think it is about you after looking at the facts provided in the information.
- how has it damaged your reputation? It is useful to write down how your reputation has been negatively affected and the consequences that you have suffered as a result. For example if you are a business owner has the number of customers steadily decreased since the publication of the information? It is possible that if no real harm has come to your reputation as a result of the information being made public you may not be able to sue for defamation.
- The next step is to find a lawyer. If you can say yes to all three questions above you should consult a lawyer and show them the defamatory information:
- the lawyer will give you legal advice as to whether the published information has a chance of being found defamatory in court;
- they will also advise you on whether you should go to court or try to sort out the problem outside of court;
- although there are advantages and disadvantages to both procedures it is generally advisable to avoid going to court whenever possible as it is a long, expensive and sometimes tedious procedure; and
- even if you choose to go to court you can still change your mind and offer to settle at any time before judgment is handed down.
- Defamation is a civil law matter which means your case will generally be heard in a Local or District Court. For very serious cases of defamation it may be appropriate to commence action in the Supreme Court.
- The first step is to determine which court you would like to file your claim in. The difference between a Local and District Court is the amount of money they are allowed to give as compensation. In NSW the Local Court can award damages up to $100,000. The District Court is able to award up to $750,000 and the Supreme Court can award sums over $750,000.
- Once you choose the court location you can start your legal proceedings by filing a form called a Statement of Claim in the court. There will be a fee for filing this form. The success of your case may depend on the information you provide in this form so it is a good idea to get an experienced defamation lawyer to prepare your case.
- As your legal proceedings continue you may be required to fill in more forms or provide more documents which your lawyer will need. These might be about the defamatory information or evidence that you are relying upon to support your claim.
- At your court hearing your arguments and the defendant’s arguments will be presented by the lawyers acting for each side. If you are in the Local Court in NSW your matter will be heard by a magistrate. If you are in the District or Supreme Court you can request that the proceedings be tried by a jury who will decide if the content is defamatory. The exception is where the evidence involves a lot of records or technical or scientific issues which cannot conveniently be considered by a jury in which case your case may be heard by a magistrate or judge depending on the court and the jurisdiction.
- If it is decided that you have been defamed the magistrate or judge will then determine what compensation you will receive.
- The alternative to litigation (going to court) is settling or negotiating a solution to your dispute.
- There are many ways to settle out of court. They are often called Alternative Dispute Resolutions (ADR). The 3 main ADR procedures are mediation, conciliation and arbitration. They all involve an independent third party.
- Mediation is where a mediator will help you and the other side identify the main issues and suggest ways of discussing your dispute. They will not give their advice or opinion about the issue. They do not have any role in deciding the outcome. The outcome will be based purely on decisions made by you and the other side to the dispute.
- Conciliation is where conciliator may have professional expertise in defamation and can give general advice about the issues and potential options for resolving your dispute. However, they do not make a judgement or a decision.
- Arbitration involves an arbitrator has the power to make the final decision. They will listen to your arguments and the other side’s arguments as well as all evidence provided. Their decision is binding. Arbitration is useful if you are seeking confidentiality and do not want your defamation case to be in an open court where anyone can come in and watch.
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