Apology Can Reduce Defamation Damages

by | Defamation

Whether you are slandered in the Pub, libeled in the newspapers or someone sledges you by mistake, you have rights at law to protect your reputation – as long as the defamatory remark isn’t true of course.  However, just because a nasty remark is not true, does not necessarily mean it is defamatory.

A person defames someone when he “publishes” defamatory statements.  By “publish” we mean that you cannot defame a person by telling only him what you think of him; you have to communicate to others, for example:

  • X writes a letter to Y that says: “Z is a thief”; or
  • X appears on a live TV broadcast and says: “Z is bankrupt”.

You do not defame where, for example:

  • X hands a letter to Y that says: “You are a thief”.

To be defamatory, the statement has to tend to lower the public opinion of the victim – in other words, to damage their reputation.  The old formula is that the statement brings the victim into “scandal, ridicule, odium and contempt”.

However, if your reputation is ‘shot’ already, you may not be defamed or receive nothing by way of damages.  So if X says Y is a thief and Y is proved to be a thief, or has been convicted of theft in the past, Y will be better off ‘holding fire’.

Intention has very little to do with the matter.  If X says that Y is a thief when he meant to say “Z is a thief”, bad luck.  X will still be liable for the publication of the defamation, even though he made a mistake.

A communication in any form (letter, email, oral statement made in conversation or broadcast, email, blog, cartoon or website posting) can be sued upon if it is defamatory of a living person.

There are a number of defences to a defamation action such as:

  • Justification (the statement is substantially true);
  • Privilege (the publication has some form of legal protection);
  • Fair Reporting (e.g. a journalist merely reports a statement made in Parliament or Court);
  • ‘Fair Comment’ (the statement was a statement of opinion only, was on a matter of public interest and is based on proper material);
  • Triviality (where the statement is technically defamatory but is actually shown to be harmless).

The law of defamation is clear enough in outline but technical and complex in practice.  The Defamation Act, adopted in most Australian States, provides for important steps for apologising and making amends that may substantially reduce damages for defamatory publications.  Early active consideration of all aspects of an alleged defamation is vital.

There are reasonably uniform Defamation Acts applicable throughout the States of Australia, which set out a specific process of offering to make amends, such as publishing a retraction and paying legal costs.  It is of course extremely important to take advice before offering an apology as the manner in which the apology is offered and the wording thereof may determine whether further action ensues.

UPDATE February 2016: Recent cases affirm that failure to apologise or maintaining a defence of truth that fails will not lead to higher (‘aggravated’) damages in itself. For this to occur in the case of a failure to apologise, it may do so if the original defamatory statement was malicious. In that case, the Court may conclude that an absence of apology may represent continued malice. As for a defence of truth (‘justification’) the fact such a defence fails will not aggravate the damages unless it is found to be improper and unjustifiable to have put up the defence, which is a high bar to get over.

For further information please contact Peter on 8362 6400 or email Peter JakobsenJoin our mailing list to receive updates and advice on current issues.

  • Peter Jakobsen

    About the author: Peter Jakobsen

    Peter has a wealth of experience in many areas of the law but practises primarily in the areas of civil and commercial litigation including employment matters, negligence, defamation, leasing and contractual disputes and debt collection.

    Peter is a skilled and clever advocate that brings all of his intelligence and significant Court room experience to each and every matter to achieve excellent results for his clients.

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