VIC How to Have Defamatory Comments Removed on Facebook?

[DMQC]

Apologies I may have been presumptive, may I ask what business structure you use for your charity?

 

[Rod]

DMCQ - you missed clause 1. A corporation has no cause of action unless they are an excluded corporation.

MLC's charity would be an excluded corporation under s 9(2)(a) or possibly s 9(2)(c)

 

[Rod]

We have no money for a solicitor and no solicitor we have spoken to (we have spoken to several) are interested in helping us pro bono.

I would except I'm not yet qualified See if a lawyer would take it on a no win/no fee basis.

AJ accusing you of fraudulent acts certainly seems like an easy win.

 

[MLC]

I have taken the time to review the relevant legislation and it seems you would be unable to take any action, whether it be to have the post taken down or for damages because you are a charity.

Defamation Act 2005 s. 9(2)(a) -

A corporation is an excluded corporation if — ​

(a) the objects for which it is formed do not include obtaining financial gain for its members or corporators​

An excluded corporation is a corporation that cannot take action for "defamation".

Since you're a charity it would follow the corporation was not formed with the objective of obtaining financial gain.

DM

It's important for anyone that might read this thread to know that you're reading the Act wrong. You will find this helpful when advising in future:

An "excluded corporation" is a corporation that does have cause of action for defamation. It means the corporation is excluded from the general rule that does not permit corporations from claiming defamation. For example, corporations that employ less than 10 people can claim defamation because they are excluded from the general rule.

But back to my charity, it is not a corporation. It is a trust. It employs zero people and does not have members or corporators. Therefore being illegible to claim defamation has clearly never been in question (as is obvious in the Act but also confirmed by the several solicitors we have spoken to).

Being a trust means defamatory comments made about the trust (charity) is equal to defamatory comments made about the trustees - which is me and my co-trustee.

"Certain corporations do not have cause of action for defamation

1. (1) A corporation has no cause of action for defamation in relation to the publication of defamatory matter about the corporation unless it was an excluded corporation at the time of the publication.
   
   
2. (2) A corporation is an excluded corporation if—
   1. (a) the objects for which it is formed do not include obtaining financial gain for its members or corporators; or
      
      
   2. (b) it employs fewer than 10 persons and is not related to another corporation—
      And the corporation is not a public body

 

[MLC]

I would except I'm not yet qualified See if a lawyer would take it on a no win/no fee basis.

AJ accusing you of fraudulent acts certainly seems like an easy win.

I've tried may lawyers - no one is interested

 

[MLC]

Apologies I may have been presumptive, may I ask what business structure you use for your charity?

I've replied under your previous comment

 

[MLC]

DMCQ - you missed clause 1. A corporation has no cause of action UNLESS they are an excluded corporation.

MLC's charity would be an excluded corporation under s 9(2)(a) or possibly s 9(2)(c)

You are correct, as I've just explained to DMQC, we don't even fall under that section of the Act - we are not a corporation.

 

[Iamthelaw]

Are you an excluded Corporation? - Yes, regardless on the exact structure of your corporation/trust/charity (based on what you've said). Therefore, you are not excluded from having a cause of action.

The act that should be referred to is Defamation Act 2005 (Vic). This act is part of the introduction to uniform defamation laws adopted across Australia.

Have you only spoken to solicitors/firms? Try a barrister maybe even a QC, you'd be surprised how many can and do accept briefs directly and often pro bono.

 

[MLC]

Are you an excluded Corporation? - Yes, regardless on the exact structure of your corporation/trust/charity (based on what you've said). Therefore, you are not excluded from having a cause of action.

The act that should be referred to is Defamation Act 2005 (Vic). This act is part of the introduction to uniform defamation laws adopted across Australia.

Have you only spoken to solicitors/firms? Try a barrister maybe even a QC, you'd be surprised how many can and do accept briefs directly and often pro bono.

No, we haven't tried beyond solicitors. We (2 of us) are trustees but we are only part time volunteers because we both suffer from the medical condition our organisation represents. We wouldn't know where to start re: looking for a barrister or QC and we don't really have the time to send endless random letters to barristers and QC's in the hope one will be interested.

Don't get me wrong, if we could we definitely would. It's not about us not making this a priority but our condition literally limits the amount of time we have. A fact this ridiculous women is no doubt taking advantage of.

 

[Iamthelaw]

No we haven't tried beyond solicitors. We (2 of us) are trustees but we are only part time volunteers because we both suffer from the medical condition our organisation represents. We wouldn't know where to start re: looking for a barrister or QC and we don't really have the time to send endless random letters to barristers and QC's in the hope one will be interested. Don't get me wrong, if we could we definitely would. It's not about us not making this a priority but our condition literally limits the amount of time we have. A fact this ridiculous women is no doubt taking advantage of.

Try via the Vicbar website. Worth a shot.