In determining the amount of damages to be awarded in any defamation proceedings, a court must ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded [Defamation Act 2005 (SA) s 32].
In Carson v John Fairfax & Sons Ltd (1992) 178 CLR 44, Brennan J said:
“The chief purpose of the law in creating a cause of action for defamation is to provide vindication to counter the injury done to the plaintiff in his or her reputation … .”
The principal remedy for a person who has been defamed is damages. The court awards money as compensation for the harm done to a person's reputation and injury to her or his feelings. As at 1 July 2012, these damages are limited to a maximum of $339 000. They are indexed annually. It is quite possible for people to show that they have been defamed but still not receive substantial damages.
The state of mind of the defendant generally is not relevant in awarding damages but an apology or correction are factors that can be taken into consideration.
An injunction is an effective remedy as it is a court order preventing a specific act of defamation, for example, the publication of a particular article in a newspaper or particular story in a television program. Injunctions are rarely granted in defamation actions, unless it is clear that the statement is defamatory and that the defendant does not intend to plead a defence. It may be used to prevent an intended defamation or where there is a real danger that a person will repeat a defamation already published.
Defamation proceedings should be commenced within 1 year of publication although this may be extended up to 3 years if a court finds it was not possible in the circumstances to commence proceedings earlier.
Other remedies that may be applicable as an alternative to defamation include an action for injurious falsehood. In this situation, the injured person or corporation will have suffered a monetary loss as a result of a false statement made in an attempt to cause loss and without any lawful justification. An action in injurious falsehood requires a finding of the court either that the defendant intended to cause harm or that the harm was the natural and probable result of a false and malicious statement.
In some cases, an injured party may have a course of action under the Trade Practices Act for deceptive or misleading conduct.
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