Has someone defamed you? Maybe it was someone you know. Perhaps, a family or friend?
Defamatory remarks against family and friends are made all the time, but we often do not hear about it. Perhaps, it is due to family and friends resolving their disputes amongst one another. Given the potentially lengthy relationships involved, people are more inclined to apologise and remedy defamatory statements. But what happens if they don’t?
What Can I Do About It?
Your options to resolve the matter would be to have a letter drafted and sent to the other side. In defamation matters, a Concerns Notice will outline the issues and how it has caused you reputational damage. The letter will also request an apology, that the defamatory material is taken down (if it is published online) or that it is corrected as appropriate, and an offer to make amends. An offer to make amends is essentially a response to the Concerns Notice, requesting that the other side to resolve the matter however they see appropriate. Usually, this entails monetary compensation for the reputational loss suffered from the publications.
But I Defamed Them
On many occasions, we find that defamatory remarks made by family and/or friends are trivial. If matters proceed to trial, the publisher can use the defence of triviality.
The defence of triviality is in section 33 of the Defamation Act 2005 as follows:
“It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of the publication were such that the [P]laintiff was unlikely to sustain any harm”.
In the legislation, the reference to harm is that of reputational harm. That is, that if the defence of triviality is used in defamation proceedings, the gist of the defence is examining that the Plaintiff’s reputation was not harmed.
In the case of Smith v Lucht[1], the Applicant was a solicitor acting for his daughter-in-law in her family law matters with her former husband, the Respondent. The Respondent made defamatory statements about the Applicant to his daughter-in-law and son on three occasions. These statements consisted of the Respondent referring to the Applicant as Dennis Denuto (a character form the film, The Castle) in emails and in person. The Applicant claimed that such statement hurt his feelings, but the Court held that hurt feelings was not a sufficient indicator for sustaining reputational harm and dismissed the appeal. In this case the Respondent relied on the defence of triviality.
Defamation in Family Law Proceedings
It is common to see parties in family law matters attempting to sue one another in defamation for statements arising from Court proceedings. It is important to note, that, on many occasions, this is privileged information and can be completely defended by absolute privilege. In other words, anything stated in Court proceedings, whether it is true or false, cannot be used as a cause of action against another person in defamation.
Absolute privilege is covered under Section 27 of the Defamation Act 2005 which is a complete defence when publications are found to be made during Court proceedings or parliamentary body proceedings.
For example, A and B were separated and were undergoing family Court proceedings for custody of the children. A had stated in a Court application that B had abused the children on a regular basis. B contended that the statements made were untrue and that A was defaming him. Following that, B attempted to contact defamation lawyers who advised against Court proceedings in the matter as A would have a strong defence of absolute privilege because the statements were made in Court proceedings.
They Did It Outside Proceedings
On the other hand, defamatory statements made during Court proceedings could have sufficient prospects of success in a defamation claim. There are some instances of this where the publisher makes defamatory statements outside platforms of Court, which can be determined as defamatory, including social media.
One instance is in the case of, Dabrowski v Greeuw[2], where the parties were undergoing family Court proceedings when the Defendant published a post on Facebook claiming that she had been in a relationship in which she experienced domestic violence and was currently in Court proceedings fighting for the children. Evidently, the Plaintiff claimed that defamatory imputations arising from this post indicated that the Plaintiff was a person who had committed domestic violence against her during their relationship. The Defendant attempted to rely on the defence of justification, stating that the publication was substantially true. The Court ruled in favour of the Plaintiff.
Unfortunately, there are also situations where long standing friendships can end and lead to defamatory statements being made. Like in the case of Grattan v Porter[3], where the parties consisted of two couples, one with a 8 year old daughter. Occasions arose where the Plaintiff would offer to supervise the daughter while the rest of the group went out together. The friendship lasted over three years and ended for unknown reasons. Soon after, the Defendants published defamatory statements claiming that the Plaintiff was a paedophile. The question of whether malice was present arose.
In this case, the defence of qualified privilege was relied upon by the Defendants.
Qualified privilege is outlined in section 30 of the Defamation Act 2005 and is established when there is proof that the person receiving the publication had an interest in obtaining the information, that the publication was made during the providing of information, and that the way in which the publication was made was reasonable. This defence is not a complete defence and can be defeated if the Plaintiff can prove that malice was a substantial part of the publication.
The Court held that while the defence of qualified privilege was made out, the Defendants’ purpose of making such statements were out of spite and ill will, which established the presence of malice. Consequently, the Court ruled in favour of the Plaintiff.
As illustrated, defamation claims against family and friends and even former friends can be challenging. Under some circumstances, it can make or break a relationship if you decide to commence court proceedings. But in many case it may not be necessary to take it that far.
At Harris Defamation Lawyers, we understand that you may not want to take such drastic action against someone with whom you have a relationship. We can assist you through the process of resolving the matter before it gets out of hand.
