Introduction

The law of defamation aims to protect a person’s reputation against harm, while making due allowance for the need to preserve the right of free speech. Whether that balance is ever achieved is a matter of dispute. With the increasing presence of the internet in our every day lives, there are even more issues.

The trans-border nature of the internet has led to difficulties with defamation and jurisdiction. If someone in America is accused of defamation against a person in Australia, which jurisdiction and which laws govern that defamation? Every country has its own defamation laws, and court processes. The issue of where to hear a case, and by which laws the case should be decided adds extra cost and court time to a legal proceeding.

In 2006, Australian states enacted largely uniform defamation laws. This is known in each state as the Defamation Act 2005. The previous Tasmanian Act was the Defamation Act 1957. Now, the law concerning civil proceedings for defamation is contained in the Defamation Act 2005 (Tas) and for criminal defamation charges in Chapter XXIII of the Criminal Code Act 1924 (Tas). These provisions replace the common law with respect to defamation in this state, and repeal the 1957 Act. The discussion which follows concentrates on the civil remedies of a person who has been defamed. All sections referred to are from the Defamation Act 2005.

Perhaps the best general advice is that defamation actions are to be avoided. Defamation actions are technical and require specialised professional services. The trial often takes place years after the defamation itself. For example, the case between Andrew Gunston and The Mercury was 10 years after the acts of defamation.

The defamation of which Gunston complained took place between May 2002 and August 2003. He was finally heard, and won record damages of $124,500, in the Supreme Court in April 2012. Before the enactment of new civil litigation legislation, and court attempts at streamlining the litigation process, such waits were not uncommon in civil cases such as personal injury or defamation. Mr Gunston had to suffer through those 10 years without vindication of his reputation or position in society.

In many cases, the matter is either not pursued or is settled with an apology or a retraction, although there is no right to either. The parties are left with legal bills to pay, which can be quite high. Occasionally, large awards of damages are made, but, relatively minor awards are far more common.