The law of defamation protects individual reputation. The law assumes that all people are of good character until the opposite is proved.
People may believe that they have been 'defamed' if someone says or implies something negative about their character but whether this is defamatory depends on factors such as its context and to whom it was said. Each case depends on its facts. For example, it has been found to be defamatory to say in a particular context that a person is a homosexual, a communist or has scabbed on fellow unionists. Words and other matter (such as cartoons) can be defamatory by innuendo - that is, where the reader has to put two and two together to understand the defamatory meaning.
The test of what is or is not defamatory depends on the standards of the community as a whole and not just of some narrow section or group.
It does not matter if the person intended to refer to, or disparage a particular person. It is enough if:
- the words reasonably lead persons acquainted with the complaining person to believe she or he is referred to
- that the material discredits the person's character and reputation.
Law in relation to Defamation
The law of defamation in South Australia is largely governed by the common law, supplemented by the Defamation Act 2005 (SA). The purpose of the law of defamation is to protect a person's reputation (generally by awarding damages), while at the same time protecting the right to freedom of speech.
Defamation actions tend to be time consuming and expensive. Delays in the courts often mean that an action is decided long after the cause of grievance has been forgotten by all but the parties involved. At the end of a case a court can only award monetary damages or an injunction. The court cannot order an apology. Reliving hurtful events is stressful and the emotional trauma of defamation can seldom be cured by the satisfaction of winning a case or from compensation. Litigation should not therefore be commenced without careful thought and expert legal advice.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.