When gossip gallops out of control: defamation law

When it comes to the world of equestrian sports, reputations are just as important as ribbons and trophies. Whether you’re at the stables, ring-side or on Facebook, careless and negative remarks can cause significant harm – particularly for professional trainers, riders and horse business owners where livelihoods are at stake.

From false allegations of dishonest selling practices, to defamatory online reviews, the law of defamation provides recourse for those who have experienced reputational harm. As this area of law continues to grow and become increasingly utilised, it is essential for anyone involved in the horse industry to understand what may constitute actionable defamation to avoid an expensive mistake.

Defamation is committed when someone either communicates or publishes to a third person any matter which adversely affects the reputation of another.

Each state and territory has its own legislation that deals with defamation. While it’s largely uniform, there are some key differences between the various states and territories, and so it is important that legal advice is sought in relation to each incident. The law aims to strike a balance between protecting reputations and safeguarding the right to freedom of speech.

A statement is considered defamatory if it would be likely to cause others to think less of that person. It does not need to allege any fault, but it may be considered harmful to that person’s reputation or cause them to be shunned or avoided by others. Many defamation claims involve the publication of material online (for example, posts or comments on Facebook or Google reviews), but spoken words may also be actionable. One often misunderstood aspect of defamation is that a claim may still be established even in circumstances where the subject is not identified by name. It is sufficient that a reasonable and ordinary reader or recipient would understand who is being referred to.

A claim for defamation must be brought within one year of the date of publication.

If the publisher can prove that the statements made were true, and the statements were not motivated by malice, then they may be able to avoid liability by relying on the defence of truth. The legislation allows for other defences, but the defendant must be able to prove it.

Publishing defamatory comments, statements or reviews online can have serious consequences. A relevant example of this can be found in the case of Aurisch & Anor v Wilson [2022] VCC 720. In Aurisch, a dog breeder was awarded $115,000 in damages plus legal costs after the defendant left defamatory reviews on the breeder’s Facebook page. Ms Aurisch had been breeding French Bulldogs since she started her business in 2003. She operated “Unique French Bulldogs Pty Ltd” at a premises near Sale in Victoria. As part of her business, Ms Aurisch had a Facebook page which contained a “Reviews” section. In March and April 2020, the defendant, Ms Wilson, published a number of reviews on the UFB Facebook page which contained defamatory allegations about Ms Aurisch’s business. Ms Aurisch sued Ms Wilson for defamation in the Victorian County Court.

Justice Smith found that the imputations were “serious and made in circumstances where they were not necessary or genuine” resulting in reputational harm. His Honour took into account that the publications were made on a page with 53,000 followers, where many prospective clients would have seen them over the course of up to 2 months, and likely spread beyond those who would have read the publications themselves. Justice Smith was not satisfied that any of Ms Wilson’s defences were made out. Ms Wilson was ordered to pay $115,000 in damages plus $5,796 in interest and Ms Aurisch’s legal costs.

The level of damages awarded reflect the high value that the law places upon reputation and also the reputation of those whose work and life depends upon their honesty, integrity and judgment.

If you have suffered reputational harm as a result of defamatory statements, particularly if you run a business, it’s important to take swift action to minimise reputational and financial harm.

A lawyer can assist by providing legal advice on your situation and if appropriate, sending a ‘concerns notice’ to the person who published the defamatory material. A concerns notice will usually demand that the publication be removed, a written apology issued and monetary compensation (including legal costs incurred) for the harm caused.

It may be tempting in the spur of the moment to say something that is later regretted – not only can defamatory statements damage relationships, but can also lead to legal and costly consequences. Grievances may be resolved by communicating your concerns with the person directly, or where appropriate, seeking legal advice.

*Information is general and not legal advice. You should seek legal advice in relation to a particular matter that you or your business may have.