If someone has posted a false and damaging statement about you or your business – whether in an online group or a message circulated through a community – you may have a defamation claim against the other party.
What Is Defamation?
In Australia, defamation means publishing some material that causes or is likely to cause serious harm to a person’s reputation by lowering their standing in the eye of others.
These days, defamation increasingly arises in everyday digital spaces such as Google Maps reviews and WeChat. However, to establish a defamation claim, the approach is not as straightforward as people might think. This article explains when a statement could be defamation, what you can do if you believe you have a defamation claim and what you can claim for compensation.
What Situations Does Defamation Law Cover
The Defamation Act 2005 (Vic) protects both individuals and businesses in Victoria. Common situations that might enliven the Act include:
- A person posted a false allegation in a private messaging group.
- A person posted a false allegation of a business on a website, such as Google Maps Reviews.
- A social media post by someone on platforms such as TikTok making false accusations about a person.
- Emails circulated by your colleagues within a workplace making false claims about someone’s honesty or conduct.
How To Make a Defamation Claim
To establish a defamation claim, a plaintiff must demonstrate three things:
- that the material was published to at least one person other than the plaintiff;
- that it identified the plaintiff; and
- that it carried a defamatory imputation.
Since the 2021 amendments to the Defamation Act 2005 (Vic), plaintiffs must also satisfy a serious harm threshold: the publication must have caused, or be likely to cause, serious harm to the plaintiff’s reputation.
This threshold can be difficult to meet in practice. It is not enough if your feelings get hurt or you feel embarrassed by the other party’s words – you must show tangible evidence that your reputation has been, or is likely to be, damaged in the eyes of others, such as lost business or withdrawal from professional opportunities. For example, if you are a restaurant owner, you have lost customers because of that false allegation.
When does a Statement Become Defamation?
However, not every hurtful or embarrassing statement is defamation. The law draws a clear line between statements that damage a reputation unlawfully and statements that, however, upsetting, are legally protected.
The following types of statements are likely to be defamatory:
- a person falsely accused you of criminal conduct such as theft or fraud;
- a person falsely alleged that you had a serious professional misconduct; or
- a person made fabricated allegations about your character.
Defence: Is It an Honest Opinion?
The law does not treat every negative statement as defamatory. One of the most important questions in a defamation dispute is whether what was said is a statement of fact or an expression of opinion – because these two things are treated very differently under Australian law.
A customer expressing a negative but genuine opinion about their experience is generally protected as honest opinion. Businesses, like individuals, cannot use defamation law to silence legitimate criticism or suppress genuine customer reviews, even very harsh ones.
Compensation
If your claim succeeds, a court can award you damages. There are two types of compensation:
- Compensation for your damaged reputation and personal distress (based on 2026’s statistics, it is capped at approximately $459,000, indexed annually);
- Compensation for financial loss – if the publication caused you to lose customers or employment, you may recover those losses in full.
However, clients should be aware that defamation litigation can be costly and unpredictable. In many cases, a well-drafted concerns notice resolves the matter without court proceedings, at significantly lower cost.
Time Limits of Your Claim
Defamation claims must generally be commenced within one year of publication, with a limited court discretion to extend this to three years. If you believe you have been defamed – whether as an individual or a small business – you should seek advice promptly
How Verge Legal Can Help
Our team advises clients on both sides of defamation disputes, we help clients:
- assess the merits of a potential claim;
- draft concerns notice;
- review Letter of Demand; or
- evaluate if the statement is legally protected.
If you have any questions, please feel free to contact us to further discuss your matter.
(Please note: this article provides general legal information only and is not legal advice. If you believe you have been affected by any of the issues described above, you should seek legal advice as soon as possible.)