What is criminal defamation?

by The FindLaw Team

It’s generally agreed upon that the internet is a wonderful tool and its creation has for the most part, made the world a better place. However, the ease and speed in which something can be communicated online may also have downsides, such as ‘trolling’ and defaming a person’s character, which may cause harm. If a defamatory action has taken place: Are there any laws which exist regarding defamation? The short answer is yes – all jurisdictions have laws criminalising certain defamatory actions which this article will explore in a general manner.

The offence

A person commits an offence if they falsely publish something that is defamatory about another person without having any regard to whether it is true or false. The offence also has an element of intent, in which the person committing the offence, wishes to cause serious harm to the person, or without having regard to whether there is serious harm.

Turning to s 529(3) of the Crimes Act 1900 (NSW) as our legislative example, an offence of criminal defamation may be committed if a person without lawful excuse, publishes matter defamatory of another living person (the victim):

  • knowing the matter to be false, and
  • with intent to cause serious harm to the victim, or any other person, being reckless as to whether such harm has been caused – is guilty of an offence.

Defences

Proceedings regarding defamation obviously curbs freedom of speech substantially, therefore, the law must attempt to strike a balance between the person who is seeking protection of their reputation, and the liberal-democratic idea of free speech. Common law defences are available, as well as statutory defences found in the uniform Defamation Act 2005.

The defences under the uniform Act are:

  • justification;
  • contextual truth;
  • absolute privilege;
  • publication of public documents;
  • fair report of proceedings of public concern;
  • qualified privilege for provision of certain information;
  • honest opinion;
  • innocent dissemination;
  • triviality.

Injunction

In Australian Broadcasting Corporation v O’Neill (2006) 80 ALJR 1672; 229 ALR 457, the High Court, referring to the judgment of Doyle CJ where his Honour said that a person likely to suffer injury where damages may not be sufficient as a remedy – for the balance of convenience “favours the granting of an injunction.”



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