1. Defamation is a specialised and complex area of the law.  General law protection is available through the tort of defamation. Statutory protection is provided pursuant to the Defamation Act 2005.
2. Actionable defamation arises where a person publishes information or makes a statement implying that the defamed party ought to be shunned or avoided, be brought into hatred, ridicule or contempt and in any event be thought the less of by right thinking members of the community. This includes lowering the individuals’ reputation in the eyes of their business associates or members of the wider community.
3. Apart from more traditional publications, the increased use of social media networks and the internet as a significant networking, marketing and brand building strategy provides increased opportunities for the publication of defamatory materials, that can be circulated rapidly and widely. Circulation of defamatory material can result in significant loss of income, future business and goodwill generally.

Who can make a claim for Defamation?

1. In Western Australia, claims for defamation made pursuant to the Defamation Act are limited to living individuals, not for profit companies and companies who employ less than ten people. Public bodies cannot sue for defamation under the Act.
2. Liability for defamatory conduct primarily results from the initial publication of defamatory statements. Liability can also arise if statements are re-published or further defamatory comments are incited by the publication of the original statements.

Defences to Defamation

1. There are a number of statutory defences to defamation. These may be used to resist a claim of defamation in appropriate and limited circumstances. Some of the defences available under the Act include:
   • justification – where the defendant can prove that the statements are substantially true;
   • contextual truth – where the defendant can prove that one or more of the imputations carried with the statement are true and that the defamatory statement does not harm the reputation of the plaintiff because of the substantial truth of the contextual statements;
   • privilege – where the statement is published subject to the protection of absolute privilege, for example, in some parliamentary proceedings;
   • publication of public documents – where a statement is contained in a public document or is a fair summary of a statement already published in a public document;
   • fair report of proceedings of public concern – where the defendant can prove that the statement was contained in a fair report of any proceedings of public concern;
   • honest opinion – where, taking into account the specific circumstances, the defendant can prove that the matter was an expression of opinion rather than a statement of fact, the opinion related to a matter of public interest and the opinion was based upon proper material; and
   • innocent dissemination – where, as an employee or subordinate distributor, and without negligence on the part of the defendant, the defendant published defamatory material and was unaware that the material was defamatory.
   • Parody.

Apologies and Offer to Make Amends

1. Section 13 of the Defamation Act sets out a procedure where the parties may avoid going to court.
2. A defendant who has published a defamatory statement may make a without prejudice offer to make amends for any harm or loss caused. For example, this might include a published apology and an amount of money to repair any loss or injury to reputation suffered. Such offers are made in accordance with section 13 of the Act and must adhere to the prescribed form and time limitations set out in these sections.
3. The plaintiff may choose to either accept an offer to make amends, and give up their right to sue in court, or proceed with civil proceedings in the Supreme Court.

Remedies

1. Damages available for injury to reputation are calculated to ensure that there is a reasonable relationship between the harm suffered by the plaintiff and the amount of money awarded in damages. Awards of damages for non economic loss are limited by the Act.
2. Damages may also be available under the general law under the tort of defamation.
3. The court may order either plaintiff or defendant to pay the costs of the other party in the event that they are unsuccessful in their claim.

Time Limitations for Claims of Defamation

1. Actions in defamation require timely attention.  The opportunity to make a claim for defamation is limited by statute.  Section 15 of the Limitations Act 2005 (WA) requires a plaintiff to commence an action for defamation in the Supreme Court of Western Australia within one year of publication of the defamatory material.