Who can sue for defamation?
Any person who is the subject of a defamatory publication can sue for defamation.
However, section9 of the Defamation Act 2005 (Vic) (‘Defamation Act’) significantly restricts the rights of corporations to sue for defamation. Only certain not-for-profit corporations, and corporations that employ less than 10employees, can sue for defamation.
It is not necessary for the plaintiff (i.e. the person who claims to have been defamed) to be identified by name in the defamatory publication. It is sufficient to show that a reasonable person reading the words understands them as referring to the plaintiff. Claiming that the defamatory material was not intended to refer to the plaintiff is not a defence, nor can it be claimed that the reference to the plaintiff is ambiguous. In one case, two people of the same name successfully sued in relation to the same defamatory publication.
A publication that refers to a group of people (rather than named individuals) only defames members of the group if a reasonable person regards it as referring to every single member of the group. For example, the statement, ‘all lawyers are dishonest’, is not defamatory of any particular lawyer because a reasonable person would not think that the statement means that every single lawyer in Australia is dishonest. On the other hand, the statement, ‘Slow & Bideawhile is a dishonest firm of solicitors’, could well be regarded as meaning that every solicitor employed by Slow & Bideawhile is dishonest. In that case, each of them could sue.
A government body (e.g. a government department or local council) cannot sue for defamation in relation to a statement that comments on the way it carries out its public functions. However, an individual politician, public servant or local councillor can sue if a statement refers to the way in which they personally carry out public functions.
From 1 July 2021, if a person wants to sue for defamation, they must follow the ‘concerns notice procedure’ explained in Part 3 of the Defamation Act. In particular, they must send a ‘concerns notice’ before commencing proceedings (see s 12B Defamation Act).
