This document provides an overview of defamation law and its importance for small businesses. It begins with an agenda for topics to be covered, including defining defamation, explaining why it is important for small businesses, identifying types of defamation, compliance with defamation law and available defenses, consequences of non-compliance, and remedies. Key points covered include the elements of a defamation claim, how both written and spoken communication can constitute defamation, and defenses such as truth, privilege, and fair comment. The document aims to educate small businesses about their rights and responsibilities with regards to defamation.

1. Defamation
Copyright © 2016 Orren Prunckun. All Rights Reserved.

2. Today’s Menu
1. Review last week.
2. Define defamation.
3. Explain why defamation is important for small
business to consider.
4. Identify some types of defamation.
5. Explain how small business can comply with
the law of defamation and explain the
defences for defamation.
6. Explain the consequences for small business
that do not comply with the law of
defamation.
7. Explain the remedies available for defamation.
8. Review today.

3. Last Week…
1. Define negligence.
2. Explain why the law of negligence is important to
small businesses and consumers.
3. Identify the essential elements of negligence.
4. Identify how small businesses can comply with the
law of negligence.
5. Identify how small businesses can mitigate the risk of
being negligent.
6. Explain duty of care.
7. Explain breach of duty of care.
8. Explain causation and damage.
9. Explain contributory negligence.
10.Explain vicarious liability.
11.Explain the consequences for small business that do
not comply with law of negligence.
12.Explain the remedies available when negligence
occurs.
13.Define insurance.
14.Explain why insurance is important to small business.
15.Identify types of risk insurance covers.

4. What Is Defamation?
Discuss in small groups and reflect back.

5. “A publisher who damages the good
reputation through harmful
communication about a 3rd party to a
recipient without a proper defence.”

6. “1) Communication from one person to at
least one other 2) that lowers or harms
the reputation 3) of an identifiable third
person, 4) where the communicator has
no legal defence.”

8. 1) Communication (publication) by any means.
• (Written, oral, pectoral) from one person to at least one other that is not
the 3rd party.
• Capable of understanding the defamatory significance.
• All involved potentially liable (author, publisher, distributor etc).
– Not only against the original publisher (the writer/speaker), but also
against anyone who takes part in the publication (the ‘primary
publisher’) or re-publication of the material (a ‘subordinate
publisher’).
2) That lowers or harms the reputation.
• Says or implies something negative about character.
• Lower or harm reputation/ridicule, others avoid or shun them.
• Intention doesn’t matter or that meant it to cause harm.

9. 2) That lowers or harms the reputation (Continued)
• Just because an imputation hurts or upsets a plaintiff, does not mean that
it is defamatory. It must affect their reputation in a damaging way.
• The limits are unclear in relation to humour, cartoons or satire.
– Words obviously intended only as a joke may be reasonably safe,
unless it makes the subject look ridiculous rather than being in good
humour.
• Context is important: a picture can become defamatory according to
placement. A comment might not be defamatory when told to a limited
audience, but may become defamatory when removed from its context
and circulated more widely.
3) Of an identifiable a third person.
4) Where the communicator (the publisher) has no legal defence.

10. • While the news media tends to be the main target for defamation
actions, people have also sued over poems, novels, cartoons,
paintings, photographs, artistic criticisms, songs and satire.
• A positive act of publishing; or
• Failure to prevent or remove defamatory information published by
someone else.
– For example, you innocently disseminated defamatory material and
later receive a complaint but fail to take action to remove the
defamatory material or prevent its display.
Not Defamatory If:
• Unknown languages or can’t comprehend it.
• Stolen.
• Reasonable precautions taken or was overheard.

11. Why Is The Law Of Defamation
Important To Small Business?
Discuss in small groups and reflect back.

12. Importance Of
Understanding
Defamation…
Communication happens all the time in business,
between:
• Consumers, suppliers, employees, employers
contractors, agents etc.
Aimed at protecting individual reputations
• People are of good charters until opposite is proved.
• Onus of proof on the person defaming.
Aims to balance free speech vs right of an individual to
enjoy a reputation from indefensible attack.
Common law, supplemented by Defamation Act 2005 (SA).
1. Act created for uniform defamation laws and to
amend the previous system to resolve without
litigation so courts are not tied up.
2. Seek vindication of reputation vs need to avoid the
resources of the courts being applied to trivial claims.
3. Need for consistency across Australia.

13. What Are Some Types Of
Defamation?
Discuss in small groups and reflect back.

14. Types of Defamation
Libel
• Permanent - written
Slander
• Non permeant - speech
• In the past used to be
divided into both categories
– now abolished by
Defamation Act 2005 (SA).
• Both are defamatory.

15. How Can Small Businesses Comply
With Defamation Law And What
Are The Defences For Defamation?
Discuss in small groups and reflect back.

16. Who Can Sue/Be Sued For
Defamation?
Cannot sue/be sued
• General group such as lawyers, travel agent cannot, because it’s not an
individual or identifies an individual
• Unless so small, can be identified – readily identifiable from facts
• Group such as unincorporated or social group cannot
• Public bodies – government council cannot, but employees may be able
Can sue/be sued
• Companies, individuals have separate legal identity (week 2) can sue and
be sued.
• Employer’s via vicariously liable.

17. Defences For Defamation
1. Truth/Justification.
2. Innocent or Unknown
Dissemination/Distribution.
3. Fair Comment/Opinion.
4. Privilege.
5. Triviality, Vulgar Abuse and Jest.

18. 1) Truth/Justification
• A complete defence.
• The defendant (the alleged defamer) must prove that every part of
the material is substantially true.
– For example, a person who says that someone is a murderer must
prove the fact of murder.
• Where there are several imputations it is a defence if the reputation
of the plaintiff is not harmed beyond damage caused from those of
the imputations which are true.
– Defamation Act (SA) 2005 s24.
– For example, if a publication suggests that a professional person has
deceived a client and has taken a client’s money and only one of the
imputations is true that may be sufficient to defend the whole
publication.

19. 2) Innocent or Unknown
Dissemination/Distribution
• Protects newsagents, booksellers, librarians and internet
service providers who unwittingly publish defamatory matter
without knowledge on their part.
• Too hard for them to keep track unless they have knowledge
of the material.

20. 3) Fair Comment/Opinion
• “It is the right of every man to comment freely, fairly and honestly on any matter of public interest.”
• This principle means it is not defamatory when words are an expression of opinion and not a statement of
fact.
– It may be difficult to determine if words are statements of facts or expressions of opinion.
– Words must be construed in their context and in some circumstances words that would otherwise be
statements of fact might be viewed as comments.
• The opinion, however, must be fair and based upon facts which the defendant can identify and prove to be
true.
• It must also be honestly held and not motivated by malice (some improper or dishonest motive).
– Personal ill will by the defendant towards the plaintiff is an example of malice.
– Instances include the conduct of people holding public office, the conduct of a political party, the
conduct of a clergyman and artistic works such as plays and books. It extends as far as the criticism of
a restaurant's food in a newspaper review.
• The Defamation Act 2005 (SA) s 29 provides a defence of honest opinion where the expression of opinion
is related to a matter of public interest and based on ‘proper material’ that is substantially true or based
on privileged material.

21. 4) Privilege
Absolute Privilege
• Some statements are absolutely privileged, so that there can be no action for defamation
even if the words were false and were published with malice.
• Statements that are protected by absolute privilege are those which are made in s25:
– Parliamentary proceedings.
– Reports published by order of parliament.
– Proceedings of courts or similar bodies.
– Statements made in legal proceedings.
– Certain communications between officers of State, for example Ministers acting in their official roles
and certain officials of government acting in the course of their official duties.
– Public documents - Defamation Act 2005 s26.
– Information published by the Crown/Government - under the Freedom of Information Act (Cth) 1991
s50, it is protected from any liability for defamation.

22. 4) Privilege Continued
Qualified Privileged
• Allows free communication in certain relationships without the risk of an action for
defamation - generally where the person communicating the statement has a legal, moral or
social duty to make it and the recipient has a corresponding interest in receiving it.
• Giving a reference for a job applicant, answering police inquiries, communications between
teachers and parents, local councillors, officers of companies, employers and employees, or
traders and credit agencies.
– However, the privileged communication must relate to the business at hand - the relationship cannot
be abused for the purpose of relaying gossip.
– Qualified privilege is not a licence to say untruths. People making statements must believe that what
they say is true.
• Not a defence if motivated by malice.
• Government and political matters are proper subjects for public discussion and such
discussion is covered by the defence of qualified privilege.

23. Triviality, Vulgar Abuse and Jest
• Although words might appear defamatory, a defendant
may establish that they were spoken in jest or as part
of vulgar abuse (insult) and therefore did not convey
any defamatory meaning to those who heard or saw
the words. In other words, the words were not taken
seriously. The Defamation Act 2005 (SA) also provides a
defence of triviality, where the circumstances of
publication were such that the plaintiff was unlikely to
sustain any harm.

24. Non Defences
• Repeating rumours.
• The person to whom the defamatory material was
published did not believe it.
• Apology is not a defence & does not constitute
admission of fault or liability - minimizes damage
done.

25. What Are The Consequences For
Small Business That Do Not Comply
With The Law Of Defamation?
Discuss in small groups and reflect back.

26. Consequences
Monetary Damages
• The principal remedy for a person who has been defamed is monetary damages.
• An appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages
awarded s32.
• “The chief purpose of the law in creating a cause of action for defamation is to provide vindication to counter the
injury done to the plaintiff in his or her reputation … .”
• The court awards money as compensation for the harm done to a person's reputation and injury to her or his
feelings. As at 1 July 2012, these damages are limited to a maximum of $339 000. They are indexed annually.
• Limited to $250,000 for non economic loss.
• It is quite possible for people to show that they have been defamed but still not receive substantial damages.
• The state of mind of the defendant generally is not relevant in awarding damages.
• There are incentives to accept apology or correction as they are factors that can be taken into consideration.
Exceptions
• Exemplary damages/Punitive damages (reform or deter) are excluded entirely.

27. Consequences
Injunctions
• Preventions of a specific act of defamation, for example, the publication of a particular article in a
newspaper or particular story in a television program.
– Injunctions are rarely granted in defamation actions, unless it is clear that the statement is
defamatory and that the defendant does not intend to plead a defence.
– It may be used to prevent an intended defamation or where there is a real danger that a person will
repeat a defamation already published.
Other remedies that may be applicable as an alternative to defamation include an action for injurious
falsehood (where there is intent).
– In this situation, the injured person or corporation will have suffered a monetary loss as a result of a
false statement made in an attempt to cause loss and without any lawful justification.
– An action in injurious falsehood requires a finding of the court either that the defendant intended to
cause harm or that the harm was the natural and probable result of a false and malicious statement.
Mitigation of damage
• Offer to make amends.
• Publish reasonable correction and pay reasonable expenses.

28. Practice Question
Jess was speaking at a public rally when Fiona
shouted, "You are an oppressive dictator who
has no care for the working class like us!"
Security stopped Fiona’s rant, but Jess was
offended.
Did Fiona defame Jess?

29. Let’s Review Today…
1. Define defamation.
2. Explain why defamation is important for
small business to consider.
3. Identify some types of defamation.
4. Explain how small business can comply
with the law of defamation and explain
the defences for defamation.
5. Explain the consequences for small
business that do not comply with the law
of defamation.
6. Explain the remedies available for
defamation.

30. Next Week:
Topic Summary & Revision

31. Don’t understand something?
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