The law of defamation protects individual reputation. The law assumes that all people are of good character until the opposite is proved.
People may believe that they have been 'defamed' if someone says or implies something negative about their character but whether this is defamatory depends on factors such as its context and to whom it was said. Each case depends on its facts. For example, it has been found to be defamatory to say in a particular context that a person is a homosexual, a communist or has scabbed on fellow unionists. Words and other matter (such as cartoons) can be defamatory by innuendo - that is, where the reader has to put two and two together to understand the defamatory meaning.
The test of what is or is not defamatory depends on the standards of the community as a whole and not just of some narrow section or group.
It does not matter if the person intended to refer to, or disparage a particular person. It is enough if:
- the words reasonably lead persons acquainted with the complaining person to believe she or he is referred to
- that the material discredits the person's character and reputation.
Law in relation to Defamation
The law of defamation in South Australia is largely governed by the common law, supplemented by the Defamation Act 2005 (SA). The purpose of the law of defamation is to protect a person's reputation (generally by awarding damages), while at the same time protecting the right to freedom of speech.
Defamation actions tend to be time consuming and expensive. Delays in the courts often mean that an action is decided long after the cause of grievance has been forgotten by all but the parties involved. At the end of a case a court can only award monetary damages or an injunction. The court cannot order an apology. Reliving hurtful events is stressful and the emotional trauma of defamation can seldom be cured by the satisfaction of winning a case or from compensation. Litigation should not therefore be commenced without careful thought and expert legal advice.
General groups (such as lawyers, doctors, Italians, university students or the staff of a certain shop) cannot sue for defamation, unless the group is so small that a person could say she or he was readily identifiable. For example, defamatory words referring to senior management of a company might sufficiently identify a number of people so that they can all bring actions in defamation.
Any non profit group or organisation that has a recognised legal status (such as a trade union or an incorporated association) can sue and be sued for defamation, but a group that is not a legal entity (such as an unincorporated association or a social club) cannot sue for damages or to protect its good name, even if its individual members can prove that they were defamed by a statement made about the group. Again, if the group is small enough, individuals in the group may sue.
If an executive of an unincorporated club publishes a defamatory letter about a person, the person defamed can sue each of those involved in the publication of the letter. If a person says an unincorporated club is inefficient and corrupt, the people running the unincorporated club may be able to sue as separate individuals, but in neither case can the unincorporated club itself sue or be sued. A group such as this, with no legal identity apart from its members, cannot sue to vindicate its reputation, see COMMUNITY ORGANISATIONS.
A company can be defamed, though only small corporations can sue for defamation. Small corporations are those which employ fewer than 10 people and which are not related to any other corporation. For the purpose of counting the number of employees, part-time employees are to be counted as an appropriate fraction of a full-time employee. Companies, like people, have reputations that can be damaged. However, although companies can claim damages for loss of reputation, they can get nothing for injury to feelings. It is said they have no feelings.
Persons or bodies who suffer damage from publications who cannot sue for defamation may be able to sue for injurious falsehood (see below Other Remedies). To succeed in an action for injurious falsehood it must be shown that there has been a monetary loss suffered and that the statement is false and made in an attempt to cause loss and without any lawful justification.
It is not possible to defame a dead person [see Defamation Act 2005 (SA) s 10].
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.