Part One – Think You’ve Been Defamed?

Understanding defamation: Legal ease not legalese®

Defamation is about protecting reputation – but it sits in a tricky space between free speech, robust opinion and genuinely harmful statements. In the age of online reviews, social media and self‑publishing, more people than ever feel they’ve been “defamed”, yet not every hurtful or unfair comment will justify a successful legal claim.

This article steps through the key issues in plain English, drawing on Australian defamation law and recent cases, so you can better understand where the line is – and what you can realistically do if you think someone has crossed it.

What is defamation?

In Australia, defamation is mainly governed by the Defamation Act 2005 (Vic) and matching legislation in other States and Territories (collectively the “Uniform Defamation Laws”). These Acts were amended in 2021–2022 to modernise the law, introduce a “serious harm” threshold and a new public interest defence.

Broadly, a publication is defamatory if it:

1. Communicates something about a person (or sometimes a small business or other entity);
2. Which is published to at least one third party (for example, in a review, social post, email or book); and
3. Which lowers the person in the estimation of right‑thinking members of the community, causes them to be shunned or avoided, or seriously harms their reputation.
4. The law looks at what an ordinary, reasonable reader would understand the publication to mean, not what the author intended or what the most sensitive reader might think.

Key elements you need to prove

If you are thinking about a defamation claim, the law generally requires you to prove three main elements:

1. Identification
   The material must be “about” you in the eyes of reasonable readers. That does not always require naming you explicitly – you might identified by description, context or other clues.

   For Example:

   1. A review referring to “the vet in the small practice at X Street with the pink logo” may still identify a specific practitioner.
   2. In a book or blog, a character with details clearly matching a real person can sometimes be enough, even if a different name is used, depending on how readers interpret it.

   The key question is whether someone who knows you, or knows of you, would reasonably understand that the publication is referring to you.

2. Publication

   The material must be communicated to someone other than you. A private note you write and never share is not “published” for defamation purposes, but:

   Online reviews on Google, Facebook, Instagram or specialist platforms are almost always publications;

   1. Books, ebooks and audiobooks are obviously publications;
   2. Podcasts, videos, emails and even group chats can be publications if they reach at least one other person.

   If you are defamed multiple times (for example on different platforms, or via print and digital editions), each publication can potentially be a separate matter.

3. Defamatory meaning (known as “imputations”)
   Courts do not only look at the literal words. They consider the overall impression and ask: what “imputations” (meanings) would an ordinary reader take away?

   Common examples include:

   1. Allegations of incompetence or lack of skill (e.g. suggesting a professional did not know what they were doing, risked harm to clients or was unfit to practise).
   2. Allegations of dishonesty, fraud, greed or exploitation (e.g. saying someone is only motivated by money, charges for unnecessary services, or hides important information).
   3. Allegations of unethical or cruel conduct (e.g. implying a vet, doctor or service provider is callous, careless or treats animals or people inhumanely).

The law distinguishes between statements of fact (which can be defamatory if wrong) and expressions of opinion (which may be protected in some circumstances). However, simply calling something “my opinion” does not automatically make it safe. If an opinion clearly implies underlying facts which are false, it can still be defamatory.

The “serious harm” test

Since the defamation reforms, a claimant must show that the publication has caused, or is likely to cause, serious harm to their reputation. This is meant to filter out minor grievances and focus on more significant damage.

When courts assess serious harm, they can look at:

1. The scale of publication (how many people saw or are likely to see the material).
2. Who those people are (for example, existing or potential clients, professional colleagues, employers).
3. Whether the publication is likely to affect your work, income, social relationships or standing in your community.

Evidence of actual impact – such as lost business, cancellations, refusal of referrals, complaints, or changed behaviour by others.

In practice, this means:

1. A single, little‑noticed comment with limited reach may not satisfy the test, even if it feels unfair.
2. A persistent, prominent or highly visible publication (for example, a Google review attached to your name or professional profile, or content in a widely circulated book or blog) is more likely to reach the threshold.

Defences – why “defamation” isn’t always unlawful

Before bringing a claim, it’s crucial to understand the main defences available to defendants. These include:

1. Truth (justification)

   If the defamatory statements are substantially true, this is a complete defence. The law focuses on the sting of the allegation: are the key accusations accurate?

   This can be very confronting in practice, because:

   1. A defamation claim invites detailed scrutiny of your conduct, records and communications.
   2. The other side may seek discovery (access to documents) and cross‑examine you and others to prove their case.

   Sometimes, even if the publication is hurtful, a careful assessment of the factual background shows that a defamation claim would likely fail because the core criticisms are true or substantially true.

2. Honest opinion

   If the publication clearly expresses an opinion (for example, a review or commentary) rather than stating facts, and:

   1. The opinion relates to a matter of public interest; and
   2. The opinion is based on proper material (such as your actual dealings with the professional, or what you saw or experienced),
   3. then the author may rely on the honest opinion defence.

   This is especially relevant for reviews and commentary. Courts recognise that people are entitled to express robust opinions, provided they are not presented as factual allegations without foundation.

3. Qualified privilege and public interest

Not every damaging statement will give rise to a defamation claim.

The law recognises that people are sometimes entitled to raise concerns with regulators, professional bodies or the public. If a publication may involve a defence such as public interest or qualified privilege, it is worth getting legal advice before deciding whether to pursue or defend a claim.

4. Other considerations

Defamation law is full of technical rules, including strict time limits, complex legal defences and questions about who is legally responsible for online content. If you think a review or publication has crossed the line, it is worth speaking to us, and do it early!

We can assess whether you have a viable claim and help you avoid costly mistakes before taking action.

Books and blogs

Defamation issues are not confined to short reviews or posts. Books, blogs, podcasts and other long‑form content can create more complex problems:

They may include factual detail, timelines, commentary and anecdotes about real events and people, even if names are changed.

People often treat books and blogs as quite authoritative, especially when they’re written by professionals in the field or marketed as “lifting the lid” on certain practices. They also tend to hang around: a book, blog or podcast episode can stay in circulation for years, with new readers or listeners constantly coming across the material long after it was first published.

When a court looks at whether that kind of content is defamatory, it doesn’t get stuck on one sentence in isolation. Instead, it steps back and looks at the whole context: the tone, the storyline, the way allegations are framed, and the overall impression the work creates. The benchmark is what an ordinary, reasonable reader would make of it – not a lawyer, and not someone reading it with special insider knowledge.

Judges also ask whether real people or businesses are clearly identifiable in the narrative, even if names or some details have been changed. They then look closely at the mix between fact and opinion, and whether any negative claims are properly backed by evidence rather than being presented as bare accusations.

Remedies: what can you get?

If a publication is defamatory and no defence applies, potential remedies can include:

• Damages (compensation) for harm to reputation, distress and any financial loss.
• Injunctions, in some cases, restraining further publication or requiring removal of content.
• Corrections and apologies, either informally or as part of a settlement.

However, litigation is expensive, slow and uncertain. It can also draw more attention to the disputed material (“the Streisand effect”), and may require you to revisit events and evidence in a way that is emotionally taxing.

For many clients, we find that the more practical goals are:

• Removing or amending the offending content where possible;
• Clarifying the factual record;
• Protecting their professional standing with regulators, colleagues and clients; and
• Putting sensible boundaries around further discussion of contentious issues.

That is why legal advice is so important before taking formal steps.

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Please note the above article is general in nature and does not constitute legal advice.

Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.