Airing Hollywood’s dirty laundry on a VERY public screen – can a good reputation ever be clawed back from a defamation case?

Airing Hollywood’s dirty laundry on a VERY public screen – can a good reputation ever be clawed back from a defamation case?

Two very public defamation cases have graced our screens and news outlets of late. One in Australia and one overseas, but both alike in their extreme public coverage on social-media. With some negative publicity you may be thinking, is bringing a defamation case really worth it?

Online Publication

Defamation law in Australia is regulated by historic case law and Commonwealth legislation called the Defamation Act 2005 (the “Act”).

The Act has recently undergone some significant amendments. Some of the amendments reflect the new ways in which defamatory material is being published. Now, the majority of defamation cases concern social media, a blog or other internet site.

What Is Success?

The courts have a variety of remedies that they can award to a successful plaintiff. These include damages for economic and non-economic loss including humiliation, loss of reputation, mental harm etc., aggravated damages and injunctions.

In the majority of successful cases, the plaintiff is awarded a sum of damages. If the matter settles, the other side may also offer an apology and publish it online. Often this is seen as a big win for plaintiffs.

Whilst the sum of damages will vary between cases, it is important to remember that:

1. Non-economic loss is capped under section 35 of the Act; and
2. Economic loss is notoriously difficult to prove.

Is the Success Worth It?

There are downsides to litigation. The most common downsides are the cost, time and stress of being in court.

The Jonny Depp v Amber Heard case has shown us that:

1. You may have to give very lengthy evidence and be cross-examined;
2. Your evidence may not come across the way you intend it to or be credible;
3. There will be dirty laundry and secrets aired in Court; and
4. People may form other judgments about you (including bad judgments) after your testimony.

A commonality between the two high profile defamation cases in Australia and the USA are that both have been very popular topics of online material. This means that the allegedly defamatory material is hitting an even wider audience and being discussed more than ever. This draws more attention to the topic, rather than letting it be swept under the rug.

There are undoubtedly instances where issuing proceedings has led to a positive outcome for a plaintiff, but it does prompt a more philosophical question in the case of such public figures as Johnny Depp and Amber Heard – have they irrevocably damaged their own reputations through the process of public trial, whatever the outcome? The same goes for Ben Roberts Smith.

What You Can Do to Prepare

If you are pondering these same questions, you can still be proactive and fight for your reputation. You should:

1. Write to the other side and see if they will remove or retract the publication. If they do, you may not want to take it further;
2. Consider whether there are any secrets you don’t want to come out or have aired in public;
3. Be honest with your lawyer or advisor about what you have said and done. Keep in mind that truth is a defence to defamation.

More commentary on defamation and the Ben Roberts Smith case can be heard here in our Director, Alex Martin’s recent radio appearance.

If you need assistance with a potential defamation matter, please reach our to one of our experienced defamation lawyers at Taurus Legal Management on (03) 9481 2000 or at info@tauruslawyers.com.au.