If you are wondering if a person could sue a streaming service for defamation in
The hit show is based on comedian
This article explores the legal basis for her potential claims. Additionally, we compare defamation laws in the
Read our other article on the subject of Defamation concerning Baby Reindeer.
The Basis for
Defamation Law in the
In the
For a defamation claim to succeed, the claimant must prove that the defamatory statement has caused or is likely to cause serious harm to their reputation. For a company, this harm must cause into serious financial loss.
How to prove a defamation claim - the elements
For a defamation claim, you must establish three elements:
Publication: The content must be communicated to at least one other person. In Fiona's case, it was released on
Identification: The statement must refer to the claimant, either explicitly or implicitly. Fiona argues that she has been identified online by viewers of the show.
Defamatory Nature: The statement must lower the claimant in the estimation of right-thinking members of society or cause them to be shunned or avoided. Fiona claims that she has been subject to online abuse and has even received death threats.
Defences to a defamation claim
If these elements are established, the burden would shift to
-
The statement/portrayal or story being the truth,
- The defendant believed it to be true. This is the honest opinion defence.
- Or the publication of the statement was done so as it was a matter of public interest.
Defamation Law in
Australian defamation law also requires the plaintiff to prove that the publication has caused or is likely to cause serious harm to their reputation. This "serious harm" threshold was introduced in 2021 to align with the
The elements of defamation (above) in
Differences in Burden of Proof
The claimant must prove that the statement is defamatory and has caused serious harm. The burden then shifts to the defendant to prove any defences, such as truth or honest opinion.
In
Potential Damages for defamation
General Damages: Compensation for harm to reputation, distresFs, and humiliation.
Aggravated Damages: Awarded if the defendant acted maliciously or recklessly.
Special Damages: Compensation for specific financial losses directly attributable to the defamation.
Exemplary (Punitive) Damages: Rarely awarded, intended to punish the defendant and deter similar conduct.
General Damages: Similar to the
Aggravated Damages: Awarded for malicious or reckless conduct by the defendant.
Special Damages: Compensation for specific financial losses.
Exemplary Damages: Also rare, intended to punish and deter.
Defences to Defamation
Truth: The defendant must prove that the statement is substantially true.
Honest Opinion: The statement must be a genuine opinion based on facts that existed at the time of publication.
Public Interest: The defendant must show that the statement was on a matter of public interest and that they reasonably believed that publishing the statement was in the public interest.
Truth: The defendant must prove that the defamatory imputations are true.
Honest Opinion: The statement must be a genuine opinion based on facts.
Public Interest: The defendant must show that the publication was in the public interest and that they reasonably believed it was so.
Her potential defamation claim would need to establish the following:
Publication: The show has been widely disseminated on
Identification: Although her name is not mentioned, Harvey argues that she can be identified through the similarities between her and the character Martha.
Defamatory Nature and Serious Harm: She claims that the portrayal has caused serious harm to her reputation, meeting the "serious harm" threshold.
If successful, Harvey could claim general, aggravated, special, and possibly exemplary damages. Additionally, she could seek injunctions and public apologies to mitigate the harm caused by the defamatory statements.
So could
The legal controversy surrounding "Baby Reindeer" highlights the complexities of defamation law in both the
While both jurisdictions require plaintiffs to establish the defamatory nature of the publication and its reference to them, Australian law places a higher initial burden on plaintiffs by requiring them to prove serious harm to reputation.
Additionally, the burden of proving truth (justification) differs between the two countries. As
Need advice for a defamation matter?
O'Brien Criminal and Civil Solicitors represents clients for defamation claims, as well as defending clients who are defendants in defamation claims. In certain circumstances, we can take these cases on a No-Win, No-Fee cost arrangement.
Ms
O'Brien Criminal & Civil Solicitors
Level 4
NSW
2000
Tel: 29261 4281
URL: obriensolicitors.com.au
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