Defamation. What are your options?

Only recently, Indigenous Australian man, Terry Flowers, was incorrectly identified as the child abductor of Cleo Smith, a 4-year-old girl who went missing for 18 days in Western Australia’s Carnarvon. Channel 7, in light of viewing the misinformation circulating throughout social media, made the brash decision to post Terry Flowers’ picture accompanied by a caption reading, ‘PICTURED: The man accused of abducting Cleo Smith’. Owing to the fact that Terry Flowers had not been approached by any authority in relation this kidnapping, he suffered severe distress at the sight of the defamatory post by Channel 7. The major news outlet took the post down and issued an apology promptly, however, according to Flowers, he suffered a panic attack and required medical assistance after hearing the news. Flowers has subsequently instructed Sydney-based firm, O’Brien Criminal and Civil Solicitors, to pursue a defamation claim against the network. The claim was settled.

The Defamation Act 2005 (SA) is the principal legislation in South Australia regarding the tort of defamation. The object of its enactment in 2005 was to create uniform law that provided effective and fair remedies for persons whose reputations had been harmed by the publication of a defamatory matter, whilst also protecting freedoms of expression and reporting. Under South Australian statute and common law, three factors must be established by the applicant for a defamation claim to succeed, these are: -

1. Material, through any relevant means, has been published to a third person about the applicant;
2. This material has subsequently caused the third person to form a lesser opinion of the applicant; and
3. The material has caused, or is likely to cause, considerable harm to the applicant’s reputation.

The types of material that can be captured under a defamation claim include, but are not limited to: social media posts, new articles, interviews, press conferences, published books and blogs.

However, arbitrary claims of defamation will not succeed in the courts. Generally, the wording or message conveyed in the material must be of a ‘natural and ordinary’ meaning to be considered defamatory, thus, innuendo and allusion do not apply.

Furthermore, a claim of defamation cannot be brought to the courts without a Concerns Notice first being issued. A Concerns Notice essentially informs the publisher and alleged conveyer of defamatory substance, of any harm, whether it be psychological, physical, or financial, that the applicant has incurred as a result of their publishments.

In response to this, the publisher may issue an ‘offer to make amends’, ordinarily within 14 days of the Concerns Notice being received. Similar to a Concerns Notice, the ‘offer to make amends’ must essentially outline an offer to publish a correction or clarification of information along with an offer to pay for expenses seen to be reasonably incurred by the aggrieved party.

A failure to either issue an ‘offer to make amends’ or to have the offer rejected, will most likely result in the matter proceeding to court.

If you wish to file a case of defamation or require a defense to a claim filed against you, Straits Lawyers are here to help. We are now offering online services in both English and Chinese.

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Please note that this article does not constitute legal advice and Straits Lawyers will not be legally responsible for any actions you take based on this article.