5539

Q&As and counting

November 2018

Defamation and alternative actions

November 2018
Other
Victoria

Asked

Dear Mentor

Our client is a manufacturer and distributor of food products.

With the use of social media augmented by what purports to be scientific analysis but which is totally misleading and deceptive, the quality of our client’s products are being maligned and our client may suffer loss and damage.

Our client has a strong suspicion as to which of his competitors has initiated this campaign and hopefully will be in a position within the next day or so to have evidence to this effect.

Can you assist by advising:
- Legislation which might be relevant so far as concerns remedies;
- The nature (if any) of any criminal offences which might be relevant;
- Any authorities, articles or papers which we would be well advised to review to get a better understanding of legal remedies and strategies to be deployed to best secure the interests of our client;
- Anything else which you believe we ought consider or research in the context.

The matter is obviously urgent and your advice would be appreciated.

Kind regards

Albert Ng

Answered

Thank you for the question.

If a potential defendant can be positively identified, a letter of demand is the first step. If that does not resolve the matter, defamation proceedings may be appropriate, however most companies cannot sue for defamation – see s 9(1) Defamation Act 2005.

The tort of Injurious Falsehood and/or a claim for misleading and deceptive conduct under s 18 of the Australian Consumer Law might be available, coupled with an application for an injunction to prevent further loss and damage.

Criminal charges are unlikely. All that can be done in this regard is report the matter to police and see what if any action they are prepared to take.

The By Lawyers Defamation and protecting reputation Guide covers defamation and alternative offences in depth and would be a useful resource. The Guide contains both commentary and precedents.

Regards

Mentor

Other
Victoria