I am not a lawyer myself, but the recent kerfuffle between 22 Percent Off and Jonk’s Bargains has got me interested in how defamation law works. Hopefully this information will come in handy to those threatened by a defamation lawsuit. To all the lawyers out there: let me know if this information is not accurate. That means you, Sarah.
Defamation law in Australia is handled on a state level, but there is not much difference between the states, as each state agreed to introduce new uniform legislation in 2005, which came into effect this year.
Corporations may only sue for defamation if they have nine employees or less. This is fantastic news; it means that you can pretty much defame any large company you want. Go crazy, kids.
Individuals within a corporation can still sue for defamation. Statements similar to “Everyone at 22 Percent Off are fine upstanding citizens, but together they have created something dirtier than Satan’s underpants” are probably not defamatory.
In practice, defamation is costly and very hard to prove. Statements that are true are not defamatory. Statements that are not likely to cause harm to the plaintiff are not defamatory. Opinions are not defamatory if they are honestly held, on a matter of public interest and based on something that is substantially true.
Some examples: “22 Percent Off’s discount card is crap and not worth the money” would not be defamatory as it is an opinion on a matter of public interest, and does not defame the character of anyone at the business. “22 Percent Off’s discount card is a scam, as none of the businesses listed on their site have agreed to accept the card” could well be defamatory, so it is a good thing that noone is actually saying that.
For most cases, damages are capped at $250,000.
For more information about Australian defamation law, go to http://www.presscouncil.org.au/pcsite/apcnews/feb06/defamation.html
Injurious falsehood is similar to defamation. To prove injurious falsehood, a plaintiff must show that the defendant has maliciously published statements which are false that caused damage to the business or property of the plaintiff. Bloggers have been sued for injurious falsehood before; an example of this is at http://webdiary.smh.com.au/archives/margo_kingston/001297.html
A frivolous defamation suit may expose a plaintiff to an abuse of process lawsuit.
In an abuse of process lawsuit, the defendant must prove that the plaintiff instituted the lawsuit for a purpose other than what defamation law provides for. In practise, this is difficult to prove. For more information about the tort of abuse of process go to http://www.lawlink.nsw.gov.au/lrc.nsf/pages/DP32CHP5
The tort of malicious prosecution may also be relevant, but I was unable to find out much information about it.
Remember that companies that threaten defamation lawsuits when they know they have no case are the embodiment of pure evil, and probably take orders from the Dark Lord himself. Don’t be afraid to call them on it.