Libel: A defamatory matter in permanent form such as writing or picture; and
Slander: A defamatory matter in transient form, such as spoken word.
Legislation has since abolished the distinction between libel and slander.
The most recent expression of the abolition is in the Defamation Act 2005 (NSW) enacted as part of the Uniform Defamation Laws which commenced on 1 January 2006 and which apply in New South Wales to causes of action arising on and after 1 January 2006. Before the uniform laws, each state had different statute law. The statute law is now uniform throughout the states. (There are some slight differences in respect of relatively minor matters.)
What are the types of Law that handle these types of matters?
The sources of the law are:
Common Law: which is the law developed by the decisions of the Courts of the Commonwealth and England (and elsewhere for that matter) over many years; and
Statute Law: which in New South Wales is the ‘Defamation Act 2005’
What is the cause of action?
It is said to be actionable or ‘per se’. Which means in other words, the person defamed, known as the plaintiff, does not need to prove that he or she has suffered damage.
What is the limitation period for commencement of action in court?
One year from the date of publication.
Is the identity of the plaintiff protected?
Frequently, material is published which does not expressly name or identify the plaintiff.
If the plaintiff is to succeed, the defamatory matter must be referable to or ‘of and concerning’ the plaintiff. Frequently the plaintiff is not named or specifically described.
What is the meaning of publication in defamation matters?
Publication does not have the day to day meaning we usually think of, for example ‘publication of a novel’.
In defamation law, ‘published’ simply means communicated.
How does a defamatory matter proceed?
The plaintiff is required in a defamation case to identify the imputations conveyed by the publication. An imputation is a message or innuendo conveyed by the publication. The Court is required to look at the alleged defamatory material and determine the imputations by determining the natural and ordinary meaning of matter complained of.
The tests are:
It is likely to injure the reputation of the plaintiff by exposing him or her to hatred, contempt or ridicule;
It contains a statement about the plaintiff which would tend to make the plaintiff be shunned or avoided; or
It has a tendency to lower the plaintiff in the estimation of others.
What is meant by the 'place of publication'?
Frequently, defamatory material is published in a number of states and/or, territories of the Commonwealth and overseas, especially where material is published on the internet.
How are defamation matters on the Internet defined?
In respect of internet publications the High Court has held that the general rule that defamation must occur at the place where the material is made available in comprehensive form (i.e. they are downloaded).