A statement will be ‘defamatory’ if the statement:

• would lower your standing or esteem in the community;
• may expose you to ridicule or contempt; or,
• cause people to shun and avoid you.

How to establish a claim in defamation

To succeed in a claim in defamation, a plaintiff must establish:

• that there has been a publication (generally either a written or oral statement which is said to contain the defamatory statements);
• that the publication identifies the plaintiff; and,
• that the publication is defamatory.

Once the above elements are established, a court will presume that the defamatory imputations are false and that damage to reputation has ensued. It is then for the defendant to establish a defence to the claim.

If defamation is established successfully, a court may award damages in respect of:

• the damage done to reputation (capped at $478,500.00 in Western Australia); and/or,
• damage suffered as a result of the dissemination of the defamatory material (for example, loss of professional opportunities, including potential clients who have been ‘turned off’ by the defamatory contents).

People entitled to sue in defamation

An ordinary, living human being can being a claim in defamation. Deceased persons cannot be ‘defamed’ and, therefore, are not entitled to bring claims for defamation in Western Australia.

Corporations can bring claims in defamation in limited circumstances, such as:

• if the corporation employs 10 or less employees (including full-time equivalents); or,
• if the corporation was not incorporated for the purposes or objectives of financial gain;

and the corporation is not a public body.

In Western Australia, the definition of ‘employee’ for the purposes of the Defamation Act 2005 (WA) does not include executive level directors and managers.

As a result, careful consideration must be given having regard to the employees of the corporation and their roles for the purposes of determining if it is an ‘excluded corporation’ and may therefore bring a claim in defamation. 

Even if a corporation is an ‘excluded corporation’, a defamatory publication still has potential to cause damage to its business interests. Consideration should be given toward matters such as whether the publication names a person who would be entitled to commence proceedings in defamation. For example, an online review may, in addition to naming the corporation, may refer to its directors or managers who may also have been defamed.

A defamation lawyer can assist you to identify potential alternative avenues to enable you to protect your business interests in the event that your company is an ‘excluded corporation’. 

Becoming involved in a defamation proceeding

If you are person who believes they may have been defamed, you may decide to take action by issuing a concerns notice (NB.: link to Concerns Notices landing page) as a first step to commencing a proceeding.

If you are a person who has either received a Concerns Notice or you have been sued by a person alleging that you have defamed them, you should seek urgent advice in relation to any available defences and whether you should make an offer to make amends.