Libel and slander are two forms of defamation in Australia and are actionable in the courts of law. Defamation itself is an untrue statement made by any person with an intention to damage the reputation or character of a certain other person.
This distinction of libel and slander became less crucial over time, and by 2005, when standard defamation legislation was implemented across Australia, it was no longer relevant in most Australian jurisdictions.
To be defamatory, a statement, whether written or spoken, must be made with the knowledge that it is false or with a reckless disregard for the truth, meaning that the person making the statement did not go far enough in determining whether it is true.
Libel
Libel is one form of defamation that is made in a permanent form. It can be done in the form of a publication, i.e making a defamatory remark on a public forum which is permanent like newspaper, magazine or a written statement.
Slander
Any defamatory statement that is spoken by a person and is not in a permanent form is Slander. It is generally a statement made on television, on a radio or a public speech.
What is the difference?
The difference between libel and slander is the mode via which the false statement is made, i.e if it is made by the person in a written format then it is libel and if the same statement is spoken publicly, then it is a slander.
It is crucial to note the distinction between an opinion and a defamatory statement.
Statements which cannot be proven to be true or false and are made by the person in respect to his or her opinion are considered to be statements of opinion and are not classified as defamatory. For example “I think Peter lacks knowledge,” is a statement that is considered to be an opinion rather than a defamation. However, to say, “I think Peter stole from the office” still being an opinion can be injurious to the reputation and character of Peter even if the statement is false can be considered to be a defamatory statement.
This is why news outlets commonly use the word allegedly when reporting on crimes that have yet to be tried in court.
What are the Limits on bringing proceedings?
In Australia there is a one year limitation period for an action in defamation claims, following the publication of the defamatory material. If a person is unable to make the claims and start court proceedings within the period of one year, they will not be able to pursue their claim.
However, the court can potentially exceed the limitation period to three years if it believes that there was a valid reason for the delay. The plaintiff has to prove that there was not a reasonable way for them to bring the proceedings within the one year limitation. The court only exceeds the time limit in rare cases and if you have missed a limitation date, it advised that you should seek urgent legal assistance.
What compensation am I entitled to ?
Defamation damages are not fixed and depend on the facts of the case. In Australia, the damages can be from a small sum to a million dollars. The damages usually depend on the harm that the plaintiff has suffered, emotionally, financially and other factors due to the defamatory remark. So the larger the loss and damage to the plaintiff, the larger the compensation is to be expected.
No matter what the likely damage is, the court proceedings usually involve a lot of costs and are taken seriously, so it is advisable that proper legal assistance is sought before issuing proceedings.
Anupam is a legal intern at OpenLegal and has recently completed his Juris Doctor from Macquarie University. His interests are Commercial and Corporate law, Criminal law, and Contracts.
Phil is a director at OpenLegal. He has over 16 years experience working in private practice and in-house counsel in Sydney and London, giving him expertise in employment law, IP, finance, leases, dispute resolution, insurance and contracts.
