If you would like advice on defamation you can send us an email to info@ahernslawyers.com.au enclosing either the defamatory material or the concerns notice sent to you and we will advise you.
We offer fixed fees for advice on defamation and preparation of a concerns notices. Our fixed fees for preparation of advice on defamation and a concerns notice are from $990.00 exc GST.
We provide top tier services and top tier experience at substantially better rates to those of our competitors and we provide fixed fee costs wherever possible for all of our matters.
The Defamation Act 2005 (WA) came into force in WA on 1 January 2006.
We have advised clients on all types of defamation matters and prosecuted and defended Supreme Court defamation actions for 25 years.
If you have defamed a person, you may be held liable for damages (money).
You have defamed a person if you make a statement which:
The fact that you have defamed somebody does not mean that you will be held liable in court. There may be defences available to you.
A defamatory statement can be written or verbal. To be defamatory, the material must be ‘published’ or made known to someone other than the person defamed. This can include saying something in front of other people, publishing an article in a newsletter, or writing something on a website or in an email or any other type of online communication.
The procedure for a ‘concerns notice’ pursuant to the Defamation Act 2005 (WA) (‘the Act’) would be an appropriate step that may allow you to receive an apology and an offer of compensation.
The concerns notice is a written notice addressed to the publisher of the defamatory matter, that they have made defamatory imputations and you would like them to make amends by apologies, paying damages and paying legal fees. A concerns notice may result in an offer to make amends, but if it does not, it is also an initial step in the process to commencing proceedings under the Act.
The concerns notice will also request a list of people to whom the defamatory statements were made. We can also request an offer that they pay your expenses, such as your legal costs.
We can advise you on the best response if you have been served with a concerns notice that alleges acts of defamation.
A concerns notice ordinarily requests compensation and an apology for the defamatory words. The complaints may be able to be resolved or the defences to the claims will be able to be articulated and placed before the other side’s lawyers, who will then advise their clients on the risks of litigation and the costs.
Defamation is a very technical area of law. Defences available to you will depend upon whether:
Only living (as opposed to dead) persons can be defamed.
Importantly, most large companies are no longer able to sue for defamation in WA. Only not-for-profit companies or companies with less than ten employees (provided they are not public bodies) can be defamed, where their trading or business reputation has been lowered.
The information has been retrieved from the Mondaq newsletter “When can a company sue for defamation?” and research undertaken in the firm.
The Defamation Act 2005 (WA) introduced a general rule whereby corporations could not sue for defamation.
There is an exception under section 9 of the Defamation Act 2005 (WA) where companies can sue for defamation if they can establish that they are an ‘excluded corporation’. This means that the company will be able to sue for defamation in their own capacity.
Generally, an excluded corporation will be classified as a corporation which does not employ more than 10 people (Defamation Act 2005 (WA) section 9(2)(b)) and is not a public body (Defamation Act 2005 (WA) section 9(2)).
However, there has been some uncertainty as to when a corporation will be an ‘excluded corporation’ under the Defamation Act 2005 (WA).
This specifically relates to who is an ‘employee’ under the Defamation Act 2005 (WA). The recent Western Australian decision of Kingsfield Holdings Pty Ltd v Rutherford [2016] WASC 117 determined who is classified as an employee for the purposes of section 9(2)(b) of the Defamation Act 2005 (WA).
It was held here that employees who work in managerial and supervisory positions will not be classified as employees as they are seen to be more ‘executive’ than the other employees.
This case has cleared up the confusion surrounding who will fall into the classification of an employee under the Defamation Act 2005 (WA).
It has been a welcomed clarification to the determination of an excluded corporation under the Defamation Act 2005 (WA) and may allow for more companies to be able to sue in their own capacity, rather than having to turn to other causes of action (such as Injurious Falsehood, which is more difficult to prove) where there have been false stamen tents made about their company.
Each person who participates in the publication of the defamatory statement, not just the author, incurs liability. This can include the broadcaster, the journalist who wrote the material, the producer of a program or editor of a newspaper, and any other person who contributed to the publication if their contribution can be identified.
Example 1: A person who hands out a defamatory letter or forwards on a defamation email can be sued, in addition to the person who wrote it.
Example 2: Employees of a small company who authorise the issuing of a defamatory media release can be sued, in addition to the person who wrote the media release.
You can’t be held liable for making a defamatory statement if:
If a legal action is brought the person sued must prove in court that all defamatory allegations and inferences that can be drawn were substantially true. This can only be done by showing original documents or calling witnesses who themselves saw or heard things directly. It can be very difficult to prove that a statement is true and this is not always a good defence to rely on. There is no defence of “honest mistake”.
You can offer your opinion on a matter of public interest, even if it lowers a person’s reputation, as long as it is an “honest opinion” based on facts you state and can prove to be true. Matters are of “public interest” only if the person whom the statement is about inherently invites public criticism or discussion (e.g. politicians).
The most commonly used “privilege” defence is “qualified privilege”. This applies where information is given to a person who has an interest in having information on a subject and the maker of the statement acts reasonably in giving that information. The maker of the statement must not be motivated by malice. The “qualified privilege” defence will apply, for example, to the reporting of a suspected crime to the police.
There are a number of factors the court can take into account when deciding whether a person acted reasonably, for example:
The other “privilege” defence is “absolute privilege”. Where a matter is published in the course of parliamentary proceedings, or in certain court proceedings, the maker is immune from legal proceedings. However, a person reporting a defamatory statement made by a member of Parliament or witness in court does not have the protection of the maker’s absolute privilege. A person reporting a statement made in Parliament or court may have the protection of qualified privilege if they make a fair and accurate report of the proceedings.
There is no general defence of “speaking out in the public interest”.
There are other defences under the Defamation Act or common law that may apply in different situations. Seek legal advice if you concerned about what defences may be available to you.
Usually a person who is going to sue for defamation will first give the person who made the statement a chance to apologise. This can be done through a “concerns notice” – a written notice to the publisher that the person has been defamed and would like the publisher to make amends.
Often, a request will be made that an apology using a specified form of words be published in a certain place, such as a local newspaper.
If you are given the chance to apologise, and wish to take it, you can make an “offer of amends” including an apology and an offer of damages if appropriate. Otherwise, the person who believes they have been defamed may proceed with their legal action. If the offer of amends is accepted and the terms are carried out, the person loses their right to sue.
Before you spend countless thousands of dollars pursuing this action there is a procedure you can follow Pursuant to Part 3 of the Defame action Act 2005.
You would issue what is referred to as a “Concerns Notice” (Section 14(2)(a) of the Act) outlining the “imputations of Concern” that you have (Section 14(2)(b) of the Act) and demand that they make to you an “offer to Make Amends” (section 15 of the Act) which would include an apology, written or broadcasted in the same way the accusations were made, and also for them to offer to a non economic loss payment.
This path may avoid litigation where costs and outcome are unknown.
Defamation cases are heard in the Supreme Court of Western Australia. If a defamation action is successful, the Court can order that the person or persons who made the statement in question pay damages to compensate for injury to reputation and any financial loss caused by the defamatory statement (such as loss of business). In addition, the court will usually order that the unsuccessful party pay the successful party’s legal costs.
For further information on awards for defamation click here.
For further information on Supreme Court proceedings for damages click here.
The Act also introduces a number of features that affect the way in which damages for defamation are awarded and assessed. These features are gathered under the proviso in section 34 of the Defamation Act, outlining that the Court is to ensure that there is an ‘appropriate and rational relationship’ between the harm sustained and the damages awarded. Several of the other features outlined in subsequent sections are that:
Section 38 outlines a variety of factors that can be taken into account for determining if damages should be migrated. These include:
The Defamation Act 2005 (WA), through the operation of s 47, modified the operation of the Western Australian Criminal Code by repealing s 53 of the Code which dealt with the defamation of foreign princes. Given the breadth of the new Act it is not surprising that an outdated provision such as this, with such a limited application, would be repealed.
Section 47 of the Act also operates to repeal Chapter XXXV of the Code and replaces it with section 345 which deals with criminal defamation. This provision makes it a crime punishable by three years imprisonment for a person, without lawful excuse, to publish defamatory matter of another living person knowing the matter to be true or false, and who intended to cause serious harm, without regard, to the victim.
