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There are two remedies for defamation under the Defamation Act, other than criminal prosecution under the Criminal Code:

  • an injunction to prevent publication;
  • damages after publication;

An offer of amends can be made as a means of early resolution, without recourse to a court settled dispute, and so has been dealt with as a separate area.

Injunction before Publication

An injunction before publication is difficult to obtain. It will not be given where the party who intends to publish the material indicates that it will justify the defamation, that is, can establish a defence for the assertions which are made and that it is for the public benefit that they be published. An applicant must demonstrate sufficient seriousness not definite harm. A court will consider the interests involved in granting or denying an application for an injunction.

Unless there is a real likelihood that the material will be further and more widely disseminated, an injunction after publication is virtually useless as a remedy. The damage has already been done.

Damages

The Defamation Act sets out several rules in relation to damages.

  • The damages must bear a rational relationship to the harm (s34). This is a matter for the court to decide, and so far there are no Tasmanian authorities on what this section means.
  • The damages for non-economic loss are limited (s35);
  • Exemplary or punitive damages cannot be awarded (s37); and
  • There are several factors in mitigation of damages (s38).

Exemplary or punitive damages were traditionally used to discourage defendants from engaging in similar conduct in the future. The new Defamation legislation abolishes this practice under section 37.

As to damages for non-economic loss, this addresses itself to such things as mental harm, or pain and suffering. The maximum damages amount is $250,000, an amount that is indexed from time to time according to the Australian Bureau of Statistics (s35(4)). A court may still order aggravated damages beyond maximum damages amount if the court is satisfied that the circumstances of the publication warrant such an award (s35(2)).

Mitigatory factors in relation to damages include (s38):

  • the defendant has made an apology, or
  • published a correction.

Section 38 also provides that it is a mitigatory factor where another publication has published matter having the same meaning or effect as the defamatory matter before the court and the plaintiff has already recovered damages, or begun an action for that purpose, or received or agreed to or received compensation (s38).

The court can take other matters into account in mitigating damages and is not limited by section 38.

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