A two part article was written by us last week concerning social media and the potential for criminal and/or defamation liability.  A few readers have raised the question as to why a party should avoid initiating defamation proceedings if the allegations are -

  1. Substantively true; and
  2. If there is a possibility that other sensitive information could be revealed in the course of the legal action.

Harry Jordaan, an experienced defamation lawyer and member of the commercial litigation team at Quinn & Scattini Lawyers, explains the reasons why initiating defamation proceedings in some instances should be avoided.

"An example that we would give to any client is the Jeffrey Archer matter where a newspaper was sued by him for defamation.  The newspaper pleaded that the statements were true and this ultimately set in motion events which led to Jeffrey Archer being prosecuted and jailed.

When we are asked to commence proceedings against someone who has defamed a client, we go through a process.  The process starts by us lodging on behalf of our client a Statement of Claim detailing all of the relevant facts.

The Defendant upon being served with these documents has a right to lodge a Notice of Intention to Defend and a defence and/or a Request for Further and Better Particulars concerning the claims made.

It is necessary that a Plaintiff responds to these requests for Further and Better Particulars otherwise the Defendant could either lodge an Application to strike out certain claims or lodge an Application for Summary Dismissal (Judgment).

In the course of these proceedings, subpoenas can be lodged to obtain certain evidence and/or the Defendant might provide evidence substantiating the statements that they have made to prove that these statements are not defamatory and are in fact true.

Inadvertently, an issue which might have seemed inconsequential, could end up receiving a large amount of media attention and/or attention by government agencies, such as the tax department (i.e. for a matter where someone claims that a party received huge kickbacks).

Notwithstanding this, I do not want individuals who have been defamed to feel that they should have to shy away.  Rather, I would recommend that a client allows us to do the following -

  • Allow us to attempt to settle the matter so that it can be dealt with quietly before even  ending up before the court which normally means that you send the other party a concerns notice (a letter) pursuant to s14 of the Defamation Act 2005 (Qld) which allows the party 28 days to come up with an offer to amend; and/or
  • Proceed ahead with action if a client does not believe that there is truth to the statements and is not concerned with other issues being brought up, which might be potentially embarrassing.