The Duties And Responsibilities Of A Civil Defamation Lawyer

December 21, 2023    litigation lawyers
The Duties And Responsibilities Of A Civil Defamation Lawyer

An act of legal folly can be categorized as either civil or criminal. Civil law deals with legal proceedings among community members rather than entities like criminals, government bodies, military, or religious affairs. Following that logic, civil defamation law covers cases of defamation lawsuits that are not a part of criminal action. In other words, they fall under the category of civil litigation. Defamation, originating in British Law, can be defined as any act of communication from an individual made to a third party that tarnishes the dignity and honor of the plaintiff.

The duties of a civil defamation lawyer as a whole involve representing the plaintiff in a defamation action. However, the details of the responsibilities that entail representing can be broken down according to the laws of defamation.

What is civil defamation?

Civil defamation is a communication from an individual published to a third party that proves harmful, dishonorable, or disreputable to another individual. Generally, civil defamation concerns acts of communication that fall under libel instead of slander. Libel refers to any published communication that is written, whereas slander refers to any publication of communication that is verbal or spoken.

Defamation is an extremely tricky area of law as it needs to balance the rights of free speech and genuine harm being disseminated against an undeserving individual through the exploitation of free speech. That’s why, in Australia, there are various rules and regulations regarding defamation claims.

What qualifies an act of defamation?

Defamation is only actionable in case it qualifies certain criteria. The plaintiff must present three factors during a defamation lawsuit:

1. The communication must be published: The act of publishing in case of defamation refers to the communication being made available to at least one other person. The people who are privy to the communication are known as the third party. For a defamation lawsuit to be actionable, the communication must be available to at least one other person apart from the individual publishing it.

2. The communication must identify the plaintiff: The act of communication must point to a particular person for the defamation to be actionable. The task of identification is relatively simple if the plaintiff has been named. However, if the plaintiff has not been named, a defamation lawsuit is still actionable if the communication mentions elements pointing to the plaintiff’s likeness. This makes some defamation identifications tricky as there can be instances of unintentional likeness of an individual being produced.

3. The communication must tarnish the reputation and honor of the plaintiff: There must be sufficient evidence to show that the plaintiff’s reputation has been tarnished.

How do you proceed with a civil defamation action?

Guiding clients through the process of a lawsuit is one of the prime responsibilities of a civil defamation lawyer. The laws of Western Australia state that the “aggrieved” or the plaintiff has the right to sue the “publisher” or the individual publishing the communication on grounds of defamation. There are several steps before a lawsuit can be presented. These steps are to be fulfilled with the expertise of a civil defamation lawyer. They are briefly listed below:

Identifying the form of publication: The publication, also known as the “Defamation Act,” must be traced by the lawyer. In the case of civil defamation, the communication is generally written, also known as a “libel.” This can be a written article, blog post, website, letter, or readable material.

Finding the publisher: With various ways to anonymously publish or publish under a fake identity, finding the publisher’s identity can often be tricky. However, court actions are available to the plaintiff to solve this problem. The pre-action discovery application from the Supreme Court is one of them. This is one of the prime duties and responsibilities of a civil litigation lawyer.

Locating the place of publication: The aggrieved has the right to sue in any Australian territory or state where the communication was published. In the case of digital publishing, the lawsuit can be filed on any territory where the material is downloadable or readable.

Compiling proof of harm or damage: While the ultimate power to decide the validity of harm resides in the judge, the aggrieved and their commercial litigation lawyer must present a case before the jury and the judge. This is one of the primary requirements and criteria for a defamation lawsuit to be actionable.

Discussing legal costs and damages: Presenting a realistic cost report during litigation is an important part of transparency between the lawyer and the client. Generally, defamation lawsuits are expensive, but the plaintiff can receive monetary compensation in case of proven defamation. The compensation can either cover economic damage borne by the plaintiff due to the defamation act or an estimated award for non-financial loss.

However, the plaintiff cannot be awarded the damages if they are sought to punish the publisher. Winning the case can also earn awards for both the plaintiff and the defendant. However, they might not be enough to cover the legal costs of the litigation.

Establish ground between defamation and innocent dissemination: Another responsibility of the lawyer is to advise their client on the validity of a communication being called defamatory. Australia has several laws in place to protect individuals’ free speech. This is imperative for any democratic nation. The lawyer must establish to the client that criticisms of their likeness may not qualify as defamatory. Similarly, the client’s displeasure at any communication is not enough to qualify it as libel. Early discussions can steer the client into the right decision and prevent them from incurring losses.

Conclusion

Civil litigation for defamation is some of the trickiest and most expensive. The court is tasked with balancing the rights of free speech and the potential abuse of the rights conferred to citizens. Clients must seek the best legal advice and proceed with utmost caution. For excellent legal advice, contact the best defamation lawyer Perth to guide you through the process with your best interest in mind.

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