Defamation Claims in South Australia: Comprehensive Guide

We recently represented the owner of a reputable and popular remedial massage service. The disgruntled spouse of a customer, without reason, published a negative Facebook review labelling the business’ premises a “brothel”.

As a result, our client was unable to display its Facebook reviews (the rest of which were glowing) and was concerned that it would suffer loss of business.

We initially conducted an extensive OSINT investigation (collecting open-source data to produce actionable intelligence) to identify the individual leaving negative reviews. We subsequently served  the other party with a Defamation Concerns Notice, an explanation was promptly provided by the other party and the review was deleted. Our client was then able to restore their (extremely positive) customer reviews!

In today’s digital age, online reviews can make or break a business, emphasizing the importance of addressing defamation promptly. Our experienced commercial and technology lawyers utilise their extensive multidisciplinary expertise to bring rapid resolution to online defamation matters.

This is a good example of how taking early action and seeking expert legal advice as soon as possible can result in the desired outcome without incurring significant legal costs.

Defamation proceedings are on the rise due to social media and negative reviews being left on various platforms such as Facebook, or Google business listings. To succeed in a defamation claim, the following elements must be proven:

1. Publication – a statement must be communicated to at least one person other than the person who is defamed. As mentioned above, this can occur either verbally or through a written publication.
2.  Falsity – the statement must be false for it to be defamatory.
3. Identification – the person or organisation who has been defamed must be capable of being identified from the publication. This does not necessarily mean that the publication must specifically name the person being defamed. It is sufficient if the publication causes people who know the person being defamed to believe that the publication relates to that person.
4. Defamatory meaning – the statement must convey a “defamatory imputation”. That is, the words that are published can be broken down into one or more meanings, which are harmful to the reputation of the person who is defamed.
5. Serious harm – defamation law has recently changed in South Australia and it is now required that the defamatory publication causes “serious harm” to a person’s reputation

Importantly, a person can be liable in defamation even if they are only repeating what someone else has said or published (republishing defamatory material).

With the digital age, new challenges and scenarios have emerged, making these defences even more crucial. There are a number of available defences to a defamation claim. The most common defences to a defamation claim are:

1. Justification (truth): it is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations are substantially true. Here, the defendant must satisfy the court that the statement(s) were substantially true to succeed in their defence. 

2. Contextual truth: If the defamatory publication included a number of separate statements and one or more of those statements is substantially true, then other statements which might not be substantially true may not be defamatory if they do not further harm the reputation of the person claiming to have been defamed. Here, a defendant cannot plead back the plaintiff’s own imputations as contextual imputations as part of its defence of contextual truth and there no additional requirement that they differ in kind.

For example, if a defamatory publication labels someone both a “thief” and a “murderer”, consider that the person being defamed has been convicted for murder but not for theft. In such a case, it may be true to label the person a “murderer” but it is false to label them a “thief”. However, being labelled a “thief” is unlikely to further harm that person’s reputation and therefore the defence of contextual truth may be available in such a case.

3. Absolute privilege: This defence attaches to any statement published in parliament by a member in the course of any parliamentary proceeding or debate. There is a fundamental public interest in the effective working of democracy and the freedom of parliamentary debate which prevails over the right of the individual to protect their reputation, even though the victim may suffer injurious falsehoods. This defence arises in relation to verbal or written publications where they are made: 

• Incidental in the course of proceedings of a parliamentary body;
• in the course of Australian Court or Tribunal proceedings; or
• by the Parole Board of South Australia in a report or other document under legislation; or
• by the victim of an offence in the course of, or for the purposes of, any proceedings of the Parole Board of South Australia relating to the offender.

4. Honest opinion: This defence may apply where the defendant can prove that: 

• The publication was an expression of opinion (rather than a statement of fact); and
• the opinion related to a matter of public interest; and
• the opinion is based on proper material.

While the above are the most common defences we see in relation to defamation claims, there are several other defamation defences which may be available and it is important to seek legal advice early on in proceedings as this is a complicated area of law to navigate.

Defamation claims can have various outcomes. Someone who has been defamed can seek financial compensation for the harm caused to their reputation.

Sometimes, the person being defamed will be satisfied with an apology, whether given privately or published. Likewise, a person being defamed might ask the other party to publish a written retraction of their defamatory statements.

To properly assess the appropriate outcome in your case, it is important to seek legal advice from an Adelaide defamation lawyer experienced in handling defamation cases

Supreme Court of South Australia

In a claim founded on a claim for defamation, costs of the claim are not payable to a successful applicant if the damages awarded are less than $50,000 unless the Court is of the opinion that it is just in the circumstances of the case that the applicant should recover the whole or part of the costs of action.

In any other monetary claim in respect of which the District Court has jurisdiction, costs of the claim are not payable to a successful applicant if the amount awarded is less than $120,000 unless the Court is of the opinion that it is just in the circumstances of the case that the applicant should recover the whole or part of the costs of action.

District Court of South Australia

In a claim founded on a claim for defamation, costs of the claim are not payable to a successful applicant if the damages awarded are less than $25,000 unless the Court is of the opinion that it is just in the circumstances of the case that the applicant should recover the whole or part of the costs of action.

In any other monetary claim in respect of which the Magistrates Court has jurisdiction, costs of the claim are not payable to a successful applicant if the amount awarded is less than $60,000 unless the Court is of the opinion that it is just in the circumstances of the case that the applicant should recover the whole or part of the costs of action.

The Court may have regard to the following factors:

1. any misconduct or unreasonable conduct of a party in connection with a proceeding;
2. any breach by a party of overarching obligations contained in the Uniform Civil Rules 2020, or an order of the Court;
3. any breach by a party of the pre-action obligations imposed by Chapter 7 Part 1 of the Uniform Civil Rules 2020;
4. the making or not making of an offer by a party to resolve the proceeding;
5. the non-acceptance by a party of an offer made by another party to resolve the proceeding;
6. the value and importance of the relief sought or any relief obtained;
7. any public interest in the subject matter of the proceeding or public benefit from the prosecution or defence of the proceeding; or
8. whether costs awarded are to be met by a person or out of a fund.