Injurious Falsehood and Defamation – A Useful Distinction?

Several high-profile defamation cases have recently been heard in Australian courts, but what separates ‘defamation’ from another legal term which is also increasingly being used in reputation disputes – ‘injurious falsehood’?

Defamation refers to false statements which damage a person’s reputation, whereas injurious falsehood refers to false statements which detrimentally affect a person’s or a business’ ability to sell goods or services.

The elements of a claim in injurious falsehood have been summarised by the Courts as:

1.      There must have been a false statement regarding the Plaintiff’s business (either written or verbal);

2.      The statement must have been publicised to a third party;

3.      The statement must be made with malicious intent; and

4.      The statement directly caused the Plaintiff actual loss.

Injurious falsehood concerns statements which, without necessarily having a detrimental effect upon a person’s reputation or causing them embarrassment, nevertheless have a negative economic impact.

Whilst the burden of proof under injurious falsehood requires the Plaintiff to prove an imputation to be false (which is not a requirement in a defamation action), the strategic benefit of running such an argument instead of or alongside a defamation claim is that it can provide an opportunity to seek injunctive relief.

Note though that the Courts have demonstrated limited patience where such an argument is utilised as ‘a transparent device to obtain a permanent injunction’ not available under defamation.

Cove Legal specialises in resolving legal disputes with particular expertise in bringing and defending defamation claims.  Principal Roger Blow is recognised as a media law expert, particularly in liability arising from the use of social media.  He regularly provides commentary concerning media law issues to television, radio stations and newspapers.

Roger Blow, Practice Director P: +61 8 6381 0326 or e: roger@covelegal.com.au

This publication is not intended to provide and does not provide legal advice. You should seek professional legal advice relating to your specific situation(s) before taking any action based upon its contents.

 

2020 Corporate Battle of the Bands take to the stage

Cove Legal is once again entering this year’s Corporate Battle of the Bands competition at The Charles Hotel on Saturday 15 February.

Cove’s Principal Roger Blow is the founder and co-organiser of the competition, which has been raising funds for charitable causes since 2008 and is this year expected to raise over $12,000 for the vital work of Youth Focus and Cystic Fibrosis WA.

These nights have a reputation for being great fun for both the bands and their fans and we would love to see clients, colleagues and contacts there to support CoveFefe on the big night.  Your ticket entry price of just $35 all goes to charity AND gets you whole night of live music, a live DJ between performances and The Charles Hotel’s very reasonably priced bar selection.  Expect energetic performances, enthusiastic cheer squads and some questionable stage outfits!

Joining Cove Legal this year are new entrants from Chevron, Realmark Property and Mitsui, who will go up against last year’s winners The Locktones (sponsored by Tekkon Technologies, La Tortilla and The Right Chemist) and ‘Invalids’ sponsored by event old timers CIA Solutions.

Youth Focus is a charity that seeks to combat suicide and depression amongst the youth of Western Australia and is a cause close to the heart of the firm and its staff.  More information on that charity can be found at www.youthfocus.com.au

For more info on the event check out the Facebook page at: https://www.facebook.com/corporatebotb/

To buy tickets (bring friends!) click here: https://www.rideforyouth.com.au/2020/event/corporate-battle-of-the-bands2/?fbclid=IwAR3hLawa0WdluX_vO8zTKzkRM0R-VQLCE2YySq0WoWyCZCUXBtqbaivOVeQ

Requesting documents during liquidation

In a recent client matter we had to determine the circumstances in which a creditor can request the financial documents of a company in liquidation. 

Not all creditors who request documents will be given them by the liquidator, especially requests that are deemed to be unreasonable.  There are a number of grounds on which a request can be deemed unreasonable such as the document is protected by legal professional privilege, or disclosure could bring about an action for breach of confidence. 

Directors of a company in liquidation can rely however on sections 198F and 290 of the Corporations Act 2001 to access company records provided there is a relevant legal proceeding against them. 

Cove Legal provide specialist advice to clients facing possible insolvency outcomes or facing actual or threatened ATO debt action. If you are attempting to address director personal liability issues, director penalty notices, garnishee orders, winding up applications, statutory demands or need advice on an insolvency situation generally, speak to us today.

Roger Blow, Principal, Ph: +61 8 6381 0327 or roger@covelegal.com.au

This publication is not intended to provide and does not provide legal advice. You should seek professional legal advice relating to your specific situation(s) before taking any action based upon its contents.