The cause of action for defamation
What is the cause of action for defamation?
At common law (aka Judge-made law), the cause of action for defamation (also, traditionally, known as “libel” or “slander” (where the former related to written defamation, and the latter to verbal defamation)), is constituted where a person communicates a defamatory accusation about a person to a third party.
Other than abolishing the distinction between “libel” and “slander” (and but for some other reforms), the Defamation Act 2005 (Qld) (the “Act“) does not materially affect the common law cause of action for defamation. Under section 7(2) of the Act, the cause of action is constituted by the “publication” of a “defamatory matter” about a person. In each case, the plaintiff would have to prove three (3) essential elements, at the least, being: 1) publication; 2) identification; and 3) defamatory meaning.
Whilst there are many formulations of the test, the High Court of Australia has repeatedly confirmed that the test for “what is defamatory” in Australia is broad and simply depends on whether the published matter is likely to lead an ordinary reasonable person to think less of the plaintiff: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [5].
