Defamation cases in Australia are notoriously hard to run. The main consideration in assessing a claim for defamation is whether there is a monetary loss suffered by the defamed party. Recently, a Sydney lawyer, Chris Murphy, was successful in recovering over $100 000 for defamation against the Daily Telegraph who described him as ‘continuing to battle with the ravages of age and with associated deafness that keep him from representing clients’; which he described as affecting him ‘like cockroaches in (his) brain’.
These matters exemplify the importance of understanding what constitutes defamation and how it balances with the doctrine of freedom of speech in order to protect yourself or your business.
What is Defamation?
In essence, defamation involves the publication of material that adversely impacts another person’s reputation. Defamatory material can come in the form of a photograph or newspaper article but can also commonly involve content published and distributed online or on social media. Therefore, it is important to carefully consider what you post online in order to protect yourself against defamation actions. For example, one social media defamation case of Mickle v Farley  NSWDC 295, a school teacher was awarded over $100,000 after a former colleague posted abusive tweets in response to her promotion.
Defamation in NSW is governed under the Defamation Act 2005 (NSW) and similar instruments exist in other states and territories. To be successful in establishing an action for defamation, the plaintiff generally needs to establish the following:
- The material was communicated to or spread to third parties;
- It identifies the plaintiff or their business; and
- The material contains one or more negative imputations which causes serious harm to the plaintiff’s reputation.
In addition, defamation actions are subject to a one year limitation period from the initial publication of defamatory material.
Defences to Defamation
There are a number of defences available to a defendant in a defamation action. These include:
- Truth: where the statements make are ‘substantially true’;
- Honest opinion: communications which are opinions rather than statements of fact and are based on proper material;
- Absolute privilege: statements that are made in circumstances covered by absolute privilege, such as communications made in court proceedings; and
- Free speech: relating to political communication.
Defending a defamation action can be complex and time consuming, so it is essential to seek legal advice before you commence proceedings.
Case Study of Chris Murphy v Daily Telegraph
The reputational damage at the centre of this case was caused by an article published by the Daily Telegraph, which inferred that Mr Murphy was too old or disabled to practice law competently. In his decision, His Honour Michael Lee held that the phrase in contention conveyed that Mr Murphy was incapable of representing his client’s interests in court due to his age and deafness, which inaccurately reflected on Mr Murphy’s professional life with serious consequences. The Daily Telegraph sought to rely on the defence of truth as Mr Murphy’s did indeed have a hearing disability. This argument was further rejected by the court which found that Mr Murphy’s disability had nothing to do with his purported inability to appear in court.
In addition to the compensation awarded by the Court, the article in question was later rectified to read as: “Murphy… continues to manage matters for his firm’s clients but hasn’t been seen to represent them in court as much in recent times”.
How Etheringtons Solicitors can help
If you would like further information regarding defamation or believe that you have been defamed or accused of posting defamatory content on your social media page, please do not hesitate to contact one of our solicitors on 9963 9800 or via our contact form here.