Compensation for Defamation
If a person has been the victim of slander or libel, a claim for damages can be brought. Whilst the Courts will not order a defendant to apologise, it is obviously good policy to apologise as soon as possible and the Courts take this into account when awarding damages (see also the article Apology Can Reduce Defamation Damages).
Amount of Damages for Defamation
Damages for defamation cannot be calculated mathematically. The award of damages can depend on many factors, including the extent of the publication of the defamatory material, whether re-publication is likely (for example, ‘re-tweeting’ of a libellous tweet), the impact or “sting” of the defamation (on the victim and persons in general), and the presence or absence of a genuine and prominent apology, or correction.
The Courts have described the basic principle in this way:
“A libel action is fundamentally an action to vindicate a [person]’s reputation on some point as to which [s]he has been falsely defamed, and the damages awarded have to be regarded as the demonstrative mark of that vindication.”
Vindication by money is therefore, the primary purpose and function of damages for defamation. The money is meant to tell the world that the victim’s reputation can be regarded as restored.
Defamation Damages for Personal Distress and Hurt
But an award of damages also serves as consolation for the personal distress and hurt caused and reparation for the harm done to personal and business reputation.
The application of this aspect of the law was recently discussed by the Victorian Supreme Court in the case of Rebel Wilson’s suit against Bauer Media, publisher of defamatory articles about the actress in “Woman’s Day.” In the appeal from the trial of that case, the Full Court decided that the gazetted amount is not the high end of a ‘range’ but instead, operates as a statutory cut-off point. In other words, one doesn’t look at the statutory limit and then ‘work back’ from some imagined worst-case scenario. The principle for damages in defamation remains the well-known formula of providing consolation for hurt feelings, compensating damage to reputation, and vindication.
The other point established in Bauer Media v Wilson # 2 is that if there is aggravation, damages can exceed the statutory limit. Aggravation can occur in a number of ways, either by the original defamation or in conduct afterwards by the defamer, even during the trial. In the Wilson case, the Court of Appeal agreed that her damages could exceed the statutory cap because of aggravation by Bauer (it failed to apologise and ran defences without merit), to justify a payout of $600,000 (Her initial judgment of $4.7m was overturned on grounds that special damage / loss of business had not been satisfactorily proved).
Defamation Legislation in Australia
Under the Defamation Acts throughout the Australian States (the SA Act is the Defamation Act, 2005), various specific sections guide the Courts in fixing an amount for a defamation of character:
- The court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded;
- The maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is $398,500.00 (this is obviously a limit that will rarely be reached other than in cases of the worst type of defamation and the largest possible publication); and
- The court is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter or at any other time except to the extent that the malice or other state of mind affected the harm sustained by the plaintiff.
A plaintiff cannot be awarded exemplary or punitive damages for defamation (as a punishment on the perpetrator of the defamation). However, in an appropriate case, the Court can award aggravated damages, which are an amount on top of regular damages to compensate the victim for a particularly humiliating and insulting defamation.
As with all litigation – don’t leave it too long to investigate a potential claim as strict time limits apply.
The ‘Grapevine Effect’
An award of money for being defamed is not given to compensate actual loss as such, although it can be. Rather, it is awarded to vindicate the damaged reputation and provide a measure of consolation. But what of a case where the damage flows from ‘Chinese Whispers,’ namely the re-telling of the original defamation?
As the High Court has explained, “The expression “grapevine effect” has been used as a metaphor to help explain the basis on which general damages may be recovered in defamation actions…It is precisely because the ‘real’ damage cannot be ascertained and established that the damages are at large. It is impossible to track the scandal, to know what quarters the poison may reach: it is impossible to weigh at all closely the compensation which will recompense a man or a woman for the insult offered or the pain of a false accusation.”
It is important to know that while the “grapevine effect” may allow a court to work out that damage to reputation, and hence damages, were the “natural and probable” result of the defamatory statements and likely re-publication at large of those statements, it cannot simply be assumed: there still needs to be evidence of causative factors, such as the nature of the false statement, the circumstances in which it was first published, and evidence of re-publication or other consequences.
“The “grapevine effect” does not operate in all cases so as to establish that any republication is the “natural and probable” result of the original publication.”
Nothing can be assumed or guessed at in defamation cases. Hence it is important to have the technical and legal thickets of a claim well worked out before taking formal action.
Defamation Further Information
For further information please contact Peter on 8362 6400 or email Peter Jakobsen. Join our mailing list to receive updates and advice on current issues.