Defamation in Queensland

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Article Summary

Defamation in Queensland means the publishing to persons, other than the person defamed, imputations to the effect of which is to lower the reputation of the person in the eyes of the public at large.

The publication is defamatory if it:

  1. Lowers the person/businesses estimation in the eyes of right-thinking, or reasonable members of the society generally; and/or
  2. Injures the reputation of the person/business by exposing it to hatred, contempt, ridicule, or being though less of; and/or
  3. Put’s the person/business in the position of being shunned and avoided.

A publication can be almost anything including things like blog posts, cartoons, emails, Facebook posts, internet articles,  Instagram posts, newspaper articles, novels and books, online business reviews, paintings, photographs, poems, radio shows, SMS text messages, songs, television shows, Twitter posts, YouTube, and so on.

If you have been defamed, or you have been accused of defamation, then it is vital that you contact a defamation lawyer as soon as possible as strict time limits apply to a defamation action.

This article will explain defamation in more detail.

Defamation lawyers in Queensland Brisbane Sunshine CoastDefamation is the publication of a false factual statement which harms the reputation of a person or small business.  This statement is published with either negligence or malice.

To bring a civil litigation action for defamation as a company, the company must have fewer than 10 employees, or must be against a natural person, and must satisfy four (4) requirements:

  1. There was a publication; and
  2. The publication named you personally (or strong implication); and
  3. The publication was defamatory; and
  4. The defamatory publication has caused (or likely to cause) serious harm.

This may sound obvious, however unless you understand what “defamatory” means at law, it is a hard question to answer.  The publication is defamatory if it:

  1. Lowers the person/businesses estimation in the eyes of right-thinking, or reasonable members of the society generally; and/or
  2. Injures the reputation of the person/business by exposing it to hatred, contempt, ridicule, or being though less of; and/or
  3. Put’s the person/business in the position of being shunned and avoided.

An action for defamation is easily made out in most cases, but success is largely dependent on several available defences open to a defendant.

There are several possible defences open to the defendant:

  1. Defence of justification
  2. Defence of contextual truth
  3. Defence of absolute privilege
  4. Defence for publication of public documents
  5. Defences of fair report of proceedings of public concern
  6. Defence of qualified privilege for provision of certain information
  7. Defences of honest opinion
  8. Defence of innocent dissemination
  9. Defence of triviality

This article our Queensland defamation lawyers explain the defamation process and the defences to a defamation claim.

If you have been defamed, or you have been accused of defamation, then it is vital that you contact a defamation lawyer as soon as possible as strict time limits apply to a defamation action.

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Defamation in Queensland

Butterworths Concise Australian Legal Dictionary states that defamation is:

The tort of publishing to persons, other than the person defamed, imputations to the effect of which is to lower the reputation of the person in the eyes of the public at large.

So, there must be a publication, an imputation, and the imputation must be defamatory.

What is a Publication?

A publication can be almost anything including things like blog posts, cartoons, emails, Facebook posts, Google search results, internet articles,  Instagram posts, newspaper articles, novels and books, online business reviews, paintings, photographs, poems, radio shows, SMS text messages, songs, television shows, Twitter posts, YouTube, and so on.

Publication Must Contain an Imputation

An imputation is a charge or a claim that the person has done something undesirable, or an accusation.

For the imputation to be defamatory it must be likely to cause ordinary, reasonable members of society to think less of the person/business.

There are two types of defamatory imputation; defamatory imputations can arise:

  1. From the natural and ordinary meaning of words, aka “false innuendo”; or
  2. Where a publication is prima facie harmless and only those with knowledge of certain facts see the defamatory meaning, aka “true innuendo”.

So, the first limb is that there is a publication, and the publication contained a defamatory imputation.  The next limb is that the publication must name a person/business personally or have a strong implication.

The Publication Named You Personally (or Strong Implication)

Obviously, to ruin a person/business reputation the publication must name the person/business, or strongly imply that this is the person/business.

This is usually not an issue, such as in the case of a defamatory online review.  However, there may be cases that are not so obvious.

Lastly, the imputations contained in the publication must be defamatory.

The Publication Caused Serious Harm

In 2021 the Defamation Act 2005 (Qld) was amended by the the Defamation (Model Provisions) and Other Legislation Amendment Bill 2021 (Qld) to include a new section at section 10A.

This new section 10A was to include a requirement for a “serious harm” to the publication of defamatory matter.  Section 10A(1) states:

It is an element (the “serious harm element” ) of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person.

Obviously, being such a new section and requirement in Queensland, there is very little case law on this issue in Queensland.  However, we can look to the Bill’s Explanatory Notes to try to understand the rationale.

The notes say (inter alia):

The purpose of the new section is to encourage the early resolution of defamation proceedings by enabling the issue of serious harm to be dealt with as a threshold issue. As a result, the defence of triviality, which currently requires a defendant to prove the harm caused by defamation matter was trivial, will be removed from the Act (see clause 20).

So clearly, the primary purpose of this section is to allow the defendant to attempt to end proceedings early, by say summary judgment application, as a complete defence to defamation claims which do not meet this threshold.

In the New South Wales Case of Rader v Haines [2022] NSWCA 198 at [18] to [34] the Court discusses the issue of serious harm in the defamation law.  I encourage you to click through and read the case, but the main take-aways from this case are:

  1. This requirement concerns the seriousness of the harm to reputation, not of the imputation.
  2. The “serious” harm element must be “more than merely substantial”.  Even though the harm is significant, it may not be considered “serious” harm.
  3. The damage is limited to reputation; no matter how severe the emotional hurt, it is insufficient.
  4. There may be serious harm in defamation without any lasting impairment.
  5. Important factors to take into account are the imputations’ plausibility, the context of the words used, the scope of the publication, the receivers’ characteristics and connections to the plaintiff.
  6. The existence of any “grapevine effect” would be important in proving serious harm in defamation claims.

Following the most recent amendments, concerns notices and the obligation to demonstrate “serious harm” to reputation are of utmost importance.

To start the defamation process, a legitimate concerns notice is required. See sections 12B(1)(b) and 12B(2) of the Defamation Act for more information on how a concerns notice affects the imputations a plaintiff can later use in the defamation litigation.

Therefore, any defamatory implications a party claims are conveyed and on which you will file a defamation claim need to be carefully considered at the Concerns Notice stage.

Further reading on the serious harm requirement includes:

  1. High Quality Jewellers Pty Ltd & Ors v Ramaihi (Ruling) [2022] VCC 2240.
  2. Georges v Georges [2022] NSWDC 558.
  3. Randell v McLachlain [2022] NSWDC 506.
  4. Scott v Bodley [2022] NSWDC 459.

The Publication was Defamatory

The Courts have given plenty of cases which help to identify what a defamatory imputation is.

In Dye v Commonwealth Securities Ltd [2012] FCA 242 the Court said:

In order to succeed in an action for defamation a plaintiff must identify a publication which conveys a meaning that was likely to cause ordinary, reasonable members of society to think less of the plaintiff

In Capital & Counties Bank Ltd v George Henty & Sons (1882) 7 App Cas 741 Blackburn LJ defined defamation as something:

which brings the plaintiff into hatred, contempt or ridicule

In McDonald v North Queensland Newspaper Company Limited [1996] QCA 115 the Queensland: Court of Appeal said:

a publication which exposes another to ridicule is defamatory

In Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 the Court defined defamatory matter as:

whether ordinary reasonable members of the community would think less of the plaintiff

So, damage to a person’s professional or personal reputation, which would make a reasonable person think less of that person, exposing that person to ridicule – would likely be defamatory matter.

However, even if a person can make out the cause of action for defamation, there are quite a few defences to a defamation action.

Defences to Defamation

The Defamation Act 2005 (Qld) contains a number of defences to a defamation action.

There defences include:

  1. Defence of justification
  2. Defence of contextual truth
  3. Defence of absolute privilege
  4. Defence for publication of public documents
  5. Defences of fair report of proceedings of public concern
  6. Defence of qualified privilege for provision of certain information
  7. Defences of honest opinion
  8. Defence of innocent dissemination
  9. Defence of triviality

I will explain these in more detail below.

Defence of Justification

Section 25 of the Defamation Act states:

It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.

So, a defamation case cannot be maintained if the imputations are true.

The onus is on the defendant to prove the substantial truth of the imputations.

Click here for a deep dive into – Defence of Justification in Defamation Claims

Defence of Contextual Truth

Section 26 of the Defamation Act states:

It is a defence to the publication of defamatory matter if the defendant proves that—

(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, 1 or more other imputations (“contextual imputations”) that are substantially true; and

(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

The contextual truth defence applies where a publication contains several different defamatory imputations, some are true, and some are not true.

If the untruthful imputations do no further damage to the reputation of the defamed person, then this is the contextual truth defence.

Defence of Absolute Privilege

Section 27(1) of the Defamation Act states:

It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege.

Section 27 then goes on to list the types of proceedings absolute privilege applies.

Absolute privilege essentially applies if the matter is published in the course of the proceedings of a parliamentary body, or an Australian court or Australian tribunal.

Defence for Publication of Public Documents

Section 28(1) of the Defamation Act states:

(1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was contained in—

(a) a public document or a fair copy of a public document; or

(b) a fair summary of, or a fair extract from, a public document.

Section 28 then goes on to list the types of proceedings absolute privilege applies.

It is a defence if the imputations were published a public document such as court judgments, documents issued by governments, legislation, or parliamentary reports, or it was published honestly for the information of the public or the advancement of education.

Defences of Fair Report of Proceedings of Public Concern

Section 29(1) of the Defamation Act states:

It is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern.

Section 29 then goes on to list the types of proceedings absolute privilege applies.

It is a defence if the imputations were, or were contained in a fair report of any proceedings of public concern such as parliamentary / government documents, Court, tribunal or public inquiry, a sport or recreation association, a trade association, and more.

Defence of Qualified Privilege for Provision of Certain Information

Section 30(1) of the Defamation Act states:

(1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the “recipient”) if the defendant proves that –

(a) the recipient has an interest or apparent interest in having information on some subject; and

(b) the matter is published to the recipient in the course of giving to the recipient information on that subject; and

(c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.

It is a defence if the imputations were published by a person with a legal, moral, or social duty to make the imputations, and the person who received the imputations had a duty to receive it – police officers or persons giving professional references for example.

Defences of Honest Opinion

Section 31(1) of the Defamation Act states:

(1) It is a defence to the publication of defamatory matter if the defendant proves that—

(a) the matter was an expression of opinion of the defendant rather than a statement of fact; and

(b) the opinion related to a matter of public interest; and

(c) the opinion is based on proper material.

It is a defence if the imputations were expressed as an opinion rather than a fact, and that it is a matter of public interest, and the opinion was based upon proper material which is substantially true, or based upon public documents or on material published under the protection of absolute privilege.

We have a very detailed article here – Defence of Honest Opinion in Defamation

Defence of Innocent Dissemination

Section 32(1) of the Defamation Act states:

(1) It is a defence to the publication of defamatory matter if the defendant proves that—

(a) the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor; and

(b) the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory; and

(c) the defendant’s lack of knowledge was not due to any negligence on the part of the defendant.

It is a defence if the defamatory material was innocently disseminated by a person who is not the primary distributor, such as a bookseller, newsagent or news-vendor, a librarian, or a wholesaler or retailer of the defamatory matter.

Defence of Triviality

THIS DEFENCE HAS BEEN REPEALED AND REPLACED WITH SECTION 10A. THIS DEFENCE WILL ONLY BE AVAILAVLE IN RELATION TO PUBLICATIONS MADE PRIOR TO 1 JULY 2021.

Section 33 of the Defamation Act states:

It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.

It is a defence if the imputations were so trivial that there was no harm caused.

My favourite case is the matter of Smith v Lucht [2015] QDC 289 where the plaintiff (a solicitor) tried unsuccessfully to sue the defendant for calling him “Dennis Denuto” from the movie The Castle.  In this case, Moynihan QC DCJ said:

The publication of the defamatory matter is protected by s 33 of the Act because the circumstances of the publication were such that the plaintiff was unlikely to sustain any harm. The plaintiff’s claim is dismissed.

So, as you can see, even if a plaintiff can make out the elements of defamation, it might easily be defeated by using one of the defences available.

Read our detailed article on Defending a Defamation Action.

Defamation Proceedings

To bring legal action for defamation the plaintiff must be an individual or a company with less than 10 employees and is not a public body.

The maximum amount of damages allowable to be claimed for non-economic loss is $250,000.00 contained in section 35(1) of the Defamation Act which says:

… the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is $250,000 or any other amount adjusted in accordance with this section from time to time …

These amounts are adjusted in the Queensland Government Gazette.  In Queensland Government Gazette Vol. 390, No. 24, dated Friday 3 June 2022, it says:

I, Shannon Fentiman, Attorney-General and Minister for Justice and Minister for Women and Minister for the Prevention of Domestic and Family Violence, declare, in accordance with section 35(3) of the Defamation Act 2005, that on and from 1 July 2022, the maximum amount of damages that may be awarded for non-economic loss in defamation proceedings is $443,000.

Therefore, the adjusted amount is currently $443,000.00.

This is subject to section 35(2) which allows for aggravated damages to be awarded in extreme cases.

There is also a non-court option contained in the Defamation Act surrounding offers to make amends.

Offers to Make Amends

Part 3 of the Defamation Act allows the publisher of the defamatory imputations to make amends.

The process is contained at section 14 of the Defamation Act, and says:

  1. The aggrieved person gives the publisher a concerns notice; then
  2. Within 28 days after receiving the concerns notice, the publisher makes an offer to make amends pursuant to section 15 of the Act.

The concerns notice must be in writing and informs the publisher of the defamatory imputations.

Then, pursuant to section 15 of the Defamation Act the publisher can offer to make amends by:

  1. Offering to publish, or join in publishing, a reasonable correction of the matter; and
  2. Telling other people that the imputations are defamatory; and
  3. Offering to pay the expenses reasonably incurred by the aggrieved person; and
  4. Making other offers, such as – issuing an apology, or paying compensation.

If the offer to make amends is accepted by the aggrieved person, then the matter cannot be continued or enforced against the publisher.

Defamation in Queensland

If you have been defamed, or you have been accused of defamation, then it is vital that you contact a defamation lawyer as soon as possible as strict time limits apply to a defamation action.

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BOOK A FREE CONSULTATION

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Defamation FAQ

Below is a list of common defamation questions that we get asked.

What is the time limit for defamation claims?

One (1) year.

Section 10AA of the Limitation of Actions Act 1974 (Qld) says:

An action on a cause of action for defamation must not be brought after the end of 1 year from the date of the publication of the matter complained of.

However, section 32A(1) of the Limitation of Actions Act says:

A person claiming to have a cause of action for defamation may apply to the court for an order extending the limitation period for the cause of action.

So, if it is not reasonable in the circumstances for the plaintiff to have commenced an action in one (1) year, then the Court may give leave for an extension.

What is the difference between defamation, libel, and slander?

Traditionally, slander was oral defamation and libel was written defamation.

However, since the enactment of the Defamation Act, the distinction between slander and libel have been abolished.  Section 7 of the Act says:

The distinction at general law between slander and libel remains abolished.  Accordingly, the publication of defamatory matter of any kind is actionable without proof of special damage.

What is a defamatory statement?

As above, a statement is defamatory if it is published to any other person, it is untrue, and the imputations contained in the publication:

  1. Lowers the person/businesses estimation in the eyes of right-thinking, or reasonable members of the society generally; and/or
  2. Injures the reputation of the person/business by exposing it to hatred, contempt, ridicule, or being though less of; and/or
  3. Put’s the person/business in the position of being shunned and avoided.

What is an example of defamation?

In these times we live in, a good example of defamation would be a public imputation that a male person has acted inappropriately with a female co-worker.

This is exactly what happened to the actor Geoffrey Rush, where a newspaper of wrongly portrayed him as having been inappropriate toward a female co-star.

Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496.

What is Internet defamation?

Internet defamation is where a person has been defamed online.

The imputation must have been published on the Internet, be untrue, and be defamatory.

A good example of Internet defamation is a malicious untrue bad review.

Is calling someone a liar defamation?

Calling someone a liar is defamation if it is untrue.

Also, the other elements must be present – it must be a publication to someone other than the defamed person, the publication must be untrue, and be defamatory.

Is it illegal to talk bad about someone on Facebook?

Yes and no – it depends on the content of the publication.

Posting on Facebook is a publication.  Therefore if the imputations contained in the Facebook post are untrue and defamatory, then this could allow that person to sue for damages.

Can telling the truth be defamation?

No, telling the truth is not defamation.

Section 25 of the Defamation Act states:

It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.

So, a defamation case cannot be maintained if the imputations are true.

How is defamation proven?

Like all legal cases, defamation cases are proven with evidence.

It is important to collect the evidence you intend to rely on as soon as possible.  For example, if the imputations are online, then take a screenshot before it is taken down.

Is oral defamation a crime?

Yes, oral defamation is a crime.

In Queensland, section 365 of the Criminal Code says:

(1) Any person who, without lawful excuse, publishes matter defamatory of another living person (the “relevant person”)

(a) knowing the matter to be false or without having regard to whether the matter is true or false; and

(b) intending to cause serious harm to the relevant person or any other person or without having regard to whether serious harm to the relevant person or any other person is caused;

commits a misdemeanour.

The maximum penalty—3 years imprisonment.

Can I sue someone for ruining my reputation?

Yes.  If the reputation was ruined because of an imputation (or imputations) contained in a publication, then this may be defamation.

A person can sue in Court or attempt to resolve the dispute outside of Court.

How much can you get for defamation lawsuit?

In Queensland the maximum amount of damages for non-economic loss is currently $432,500.00 (at the time of writing).

However, a person may also claim aggravated damages and legal costs if successful.

What is written slander called?

Traditionally, written slander is called libel.  However, in Queensland both slander and libel are both called defamation.

Can I sue someone for defamation of character on Facebook?

Yes and no – it depends on the content of the publication.

Posting on Facebook is a publication.  Therefore, if the imputations contained in the Facebook post are untrue and defamatory, then this could allow that person to sue for damages.

This is subject to the numerous defences available to the defendant.

If you have been defamed, or you have been accused of defamation, then it is vital that you contact a defamation lawyer as soon as possible as strict time limits apply to a defamation action.

STRATEGIC THINKING – POSITIVE OUTCOMES – PROVEN RESULTS

BOOK A FREE CONSULTATION

OR CALL: 1300 545 133 AND SPEAK TO OUR LAWYERS TODAY

Further reading:

  1. Defamation Claim and Mixed Martial Arts – Case Note
  2. Defamation & Bad Online Reviews

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