A simple explanation of what makes something defamatory ... does it make people (a) think less of the person it is about, or, (b) make people want to avoid that person.
It's not necessary for the statement to say that the person is bad, but if it says that they are not good at their job or lack qualifications, that is enough.
An example is if someone says "X is a nice person but can't do surgery well" about a surgeon, it would be damaging to their reputation because it affects their profession, but if someone says the exact same words about a person who isn't a surgeon (perhaps, for example, where it turns out the person is actually a plumber), it wouldn't be considered defamatory.
The Link Between Duels and Defamation
Let's duel at dawn! ... The history of defamation takes most people by surprise, but makes sense when you work as a defamation lawyer.
Doing this job, you come to realise that it's not so much about money for the injured party. It's about their reputation being vindicated.
The evolution of how society deals with false statements that damages a person's reputation has many twists and turns. But one linkage is especially thought-provoking.
In the past, the duel was seen as a way to restore a person's honour if it was believed that their reputation had been damaged by false statements.
As society progressed, the use of duels as a means of resolving defamation cases was phased out and replaced with more legal forms of redress.
In 1613, King James I issued a royal edict against duelling, and this was reinforced by a Star Chamber decree in the following year.
From that point on, courts waged a continuous hostility to the duel in all its forms. They refused to regard it as in any way an affair of honour, but held it to be an unlawful assembly in an aggravated form.
The creation of the tort of written defamation was a way to address non-political, non-criminal libels.
It was a solution to the question of how to restrain these types of libels, when the vindication of the duel was no longer an option.
We often overlook the historical context of our laws, as we navigate a rapidly-changing landscape. But it helps to better understand human nature, if we learn about where our laws have come from.
Compensating for Injury to Feelings: A Standard Part of Defamation Damages
Many people are surprised to learn that damages for injury to feelings can be awarded in defamation cases. In addition to protecting one's reputation, the tort of defamation also recognizes the harm caused by hurt feelings.
Lord Diplock stated, "The harm caused to the plaintiff by the publication of a libel upon him often lies more in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him."
An award for injury to feelings is a standard part of compensatory damages. Additionally, if the defendant's conduct has exacerbated the plaintiff's injury, they may also be entitled to "aggravated damages." It's important to note that corporations cannot claim injury to feelings.
It's possible for a plaintiff to prove injury to reputation by showing they have been "shunned and avoided" by others as a result of the defamatory statement. BUT, such evidence can also demonstrate substantial hurt to the plaintiff's feelings.
What are the consequences of being a publisher of defamatory third party comments on social media?
DEFAMATION ... In Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 the High Court affirmed traditional concepts of what a 'publisher' is in defamation law (in the context of social media).
1. The media companies Fairfax Media Publications, Nationwide News, and Australian News Channel were held liable for defamation as publishers of third party comments made on their public Facebook pages.
2. The High Court of Australia determined that liability as a publisher does not require knowledge of the defamatory matter and that any act of participation in the communication of defamatory matter to a third party is sufficient to render a person a publisher.
3. Importantly, the Court found that the degree of active and voluntary participation is irrelevant, provided that some kind of involvement can be proved.
4. The media companies were held liable for defamation as publishers of the defamatory third party comments because they actively and voluntarily participated in the process of making the comments available for comprehension by a third party.
If you have been a victim of defamation on social media, feel welcome to contact me to discuss your options.
The Importance of a Well-Crafted Apology in Defamation Cases
Apologising is not always easy, but it is a crucial part of maintaining healthy relationships and repairing damage caused by our actions.
As a defamation lawyer, I see firsthand the importance of a well-crafted apology. Written and signed apologies are usually a crucial element of an overall settlement of a defamation case.
According to a recent TED talk published on YouTube, good apologies generally share certain elements. Here are some key points to consider when apologising:
1. Accept responsibility for your actions. This is the "centrepiece" of an apology and involves acknowledging and understanding the impact of your actions on the other person.
2. Seek to understand the perspective of the wronged party. A good apology isn't about making you feel better, it's about trying to repair the damage to your relationship. This means it's important to put your own ego aside and try to see things from the other person's point of view.
3, Offer a sincere apology, even if your mistake was an accident. Accidents do happen, but it's important to recognize that they can still cause harm and offer a sincere apology.
4. Clearly acknowledge wrongdoing. This means admitting specifically how you messed up and showing that you understand the impact of your actions.
5. Make an offer of repair. This can be a tangible gesture, like replacing something you damaged, or a more symbolic gesture, like expressing love and respect for the person you wronged. It's important to follow through on your offer of repair and demonstrate through your actions that you are committed to changing your behavior in the future.
By considering these elements, you can craft a sincere and effective apology that helps repair damage and strengthen relationships. There are more tips on apologies in the TED talk, "The best way to apologize (according to science)" https://lnkd.in/gK6t5VQP