Has someone has ever said anything so bad about you that you feel you need to take action? Have they lied about you or your business and caused you real harm? If so, the law of defamation might help you right these wrongs.
Gossip and lies can do real harm to a person, their business or even their mental and physical health. What’s worse is bad news always spreads faster than good. Here’s a real life example: I had a bad experience with a carpet company recently and I told at least six or seven people about it. But I had a really good experience with the tradesperson who built my carport and so far, I’ve only told one person … and that was my mum!
This is a great example of just how fast bad news spreads. With such easy access to social media these days, rumours and lies spread even quicker and more importantly, can have a real impact on a person’s reputation or brand. So if this has happened to you, what can you do about it?
The law of defamation can help you. Defamation is the spreading and/or saying of something that isn’t true that damages a person’s reputation or a business’s brand. In NSW, you can claim compensation for the damage to your reputation or brand if you or your business has been defamed. Here is a short explanation of how the defamation rules work:
First, someone needs to defame or slander you. They could write something bad about you on the internet or spread a lie about you in the workplace. What they actually say is legally called an imputation. Three things need to occur for it to be classified as an imputation:
- The imputation needs to be untrue, or not allowed under the rules. These rules or circumstances apply to some people who are allowed to say bad things about you and get away with it. For example, journalists can generally get away with saying more than most people as what they reveal is in the public interest. Another example could be your boss doing a performance review of you in which he/she says less than flattering things. People are allowed to say things about you if they are actually true. However, if the imputation is untrue or isn’t allowed under the rules, you may have a case for defamation.
- The imputation cannot be “mere verbal abuse”. I know that sounds strange as how can “abuse” be ok but defamation not? Maybe it’s because people take abuse less seriously. Let’s take an imaginary example. Say Mr Belic runs a restaurant. If you make a general statement like “Mr Belic is a complete idiot” people could say you are just angry with him. However, if you say “Mr Belic uses food that isn’t fresh” and it’s a lie, that can be called defamation. The first statement about him being an idiot may have a small effect on Mr Belic’s business but the second statement could kill it – who wants to eat at a restaurant that doesn’t serve fresh food?
- The defamer needs to defame you to an audience. This is critical because this shows the extent of the damage. For example, if someone defames Mr Belic to one person and it stops there, the damage is limited to one potential customer. Or if they defame Mr Belic in a newspaper that nobody reads it probably means no real damage was done. However, if that same person tells the entire industry via social media or some other means that Mr Belic serves bad food then the damage is much more serious and could even cause his business to shut down.
Remember: all three of these things need to happen for you to have a case for defamation. If they have, here’s the steps you can take to build your case:
Building Your Defamation Case
- The first step is to issue a letter under the Defamation Act. You could think of this as a cease and desist letter but its technical name is a concerns notice. This lets the defamer know you’ve been defamed and details what they have said, demands an apology and possibly compensation if there has been reputational/business damage. If you want an example of this letter to use here is a concerns notice template.
- If the behaviour does not stop and no apology is given, the next step is to commence court proceedings. In this case, you are asking the Court to ask the person to apologise and clear your name plus compensate you for the loss of your reputation and/or business in monetary form (this is the ‘damages’ part).
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