Injurious falsehood is making a comeback. Its popularity lapsed after Victorian times, so most lawyers do not remember it.
Why accuse someone of defamation when you can accuse them of injurious falsehood which sounds so much better? Well, the reason is that it is harder to prove but in Australia, for corporations with more than 10 employees it is the only option as they are not allowed to sue for defamation, as such.
Injurious falsehood differs from the usual defamation actions in that you must prove that:
1. The statement is false. For instance, in defamation it is assumed that you do not beat your wife. Whereas in injurious falsehood you must prove that you do not. This can be fairly straightforward if your wife gives evidence that you do not beat her (which she will do if she knows what is good for her).
2. It was made maliciously. It is sufficient for a defamatory statement to be the result of stupidity rather than with intent to injure. It is difficult to prove a person was malicious as they will deny that they intended any harm. Strong drink is a useful ingredient of many successful cases.
3. You suffered actual damage and not just hurt feelings. Individuals should be able to dig out a shrink to say there is something wrong with them. The difficulty is proving that this abnormality occurred as a result of an injurious falsehood. Corporations cannot claim hurt feelings or mental health issues; therefore, they must rely on lost profits or other measurable damage to the brand. It is difficult to prove that lost profits are the responsibility of one person unless it is the marketing manager.
So injurious falsehood is more difficult to achieve, however, alleging a company’s beef is horse meat, or its business model is a Ponzi scheme is likely to be an injurious falsehood, if it is false and made maliciously.
© Paul.Brennan 2014. All rights reserved.
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