Whether a matter is defamatory is a question of fact to be determined by a court considering a number of judicial principles, the most common being whether reasonable members of the community either seeing, hearing or reading the matter will likely:
- lead to a lowering of the relevant person’s reputation
- lead others to think less of them
- make others shun or avoid them
- cause others to ridicule, hate or despise them.
Method of publication
The method of ‘publication’ is very broad and can include spoken words, written communications in books, newspapers, the internet, emails, posts on social media, tweets or text messages, photographs, cartoons or other images and even gestures.
Even if something is defamatory, the person who published the defamatory matter may have a defence and be protected from claims of defamation, for example, if the content of the matter is true (or substantially true) or is spoken by a politician in parliament.
If the court finds a person has defamed another person, it can order the person to apologise or pay monetary compensation (damages) to the person who has been defamed. The amount of the damages will depend on the loss suffered by the defamed person.
A claim for defamation:
- must be made in either the District or Supreme Court and may involve a jury
- must be commenced within one year from the date of the publication of the matter (s 10AA Limitation of Actions Act 1974 (Qld))
- can result in a court ordering the unsuccessful party to pay the legal costs of the other party.
If someone has published or said something about you that others have seen or heard, and depending on the content of those words or images, in addition to a possible claim for defamation you may also have other legal avenues to consider, for example if the matters:
- are being experienced in the workplace
- relate to your race, sexuality, religion or a disability
- are of a threatening or violent nature, and you do not feel safe, call the police
- include graphic photographs of you in a private act (e.g. showering or in a state of undress), call the police.
If you need something removed from a social media site, the Office of the Children’s eSafety Commissioner publishes a list of social media services safety centres, which will provide you with information and contacts to assist you to make a complaint to the relevant website and ask for content to be removed. Prior to having the content removed, you should retain a copy of the content (e.g. take a screenshot or print the material).
Defamation case example
Mr Farley, a former student at a high school in New South Wales, published a number of comments on Facebook and Twitter about the music teacher at his former high school. The comments were found to be untrue and ‘had a devastating effect’ on the music teacher. The court ordered the former student to pay the teacher the sum of $105 000 (see Mickle v Farley  NSWDC 295 (29 November 2013)).