Defamation

Defamation is a tort which relates to the publication of a statement that has caused, or is likely to cause, serious harm to a person’s reputation.

There is no statutory definition of defamation. However, the key ingredients of the cause of action are:

1. •

   the publication of words or other matter that refer to the claimant

2. •

   an imputation from those words which is capable of causing serious harm to the claimant’s reputation, and

3. •

   the words cannot be proved to be true or excusable by any other legal defence (eg honest opinion or qualified privilege)

The common law test for establishing whether a statement is defamatory is whether the imputation of it would lower the claimant in the estimation of right-thinking members of society generally. However, section 1 of the Defamation Act 2013 (DA 2013) introduced a threshold requirement that a statement is not defamatory unless its publication has caused, or is likely to cause, serious harm to the reputation of the claimant, giving statutory effect to common law threshold tests. It also raised the bar from ‘substantial’ harm to ‘serious’ harm. Furthermore, in Lachaux, ...