Defamation and Media Law Journal 2: Defamation Defences

A basic understanding of the law of defamation requires some knowledge of the potential defences that apply.  In certain circumstances the law provides protection in respect of otherwise defamatory publications and accordingly some knowledge of those defences is vitally important.

A number of defences to claims for defamation are contained in the Defamation Act 2005.  However it is expressly provided in the legislation that the Act does not limit or restrict other defences or exclusions of liability.

Statutory Defences

The defences prescribed under the Act are as follows:-

  1.   Justification – (s 25)
  2.   Contextual truth – (s 26)
  3.   Absolute privilege – (s 27)
  4.   Publication of public documents – (s 28)
  5.   Fair report of proceedings of public concern – (s 29)
  6.   Qualified privilege for provision of certain information –(s 30)
  7.   Honest opinion – (s 31)
  8.   Innocent dissemination – (s 32)
  9.   Triviality – (s 33)

The following is a brief description of some of these statutory defences.

Justification

Under section 25 of the Defamation Act 2005 it is provided that it is a defence to a claim of defamation for a defendant to prove that the defamatory matter was “substantially true”.  Pursuant to the dictionary provisions found in schedule 5 of the Act, the term “substantially true” is defined as “true in substance or not materially different from the truth”.

In seeking to rely upon this defence however, defendants often encounter difficulties from an evidentiary point of view.  In order to rely upon such a defence there must be appropriate evidence available in admissible form.  Neither rumour, gossip or any other form of hearsay evidence will be accepted by a court in support of such a  defence.

Contextual Truth

The defence of contextual truth entitles a defendant in certain circumstances to plead that in addition to the defamatory imputations relied upon by the plaintiff, other contextual imputation/s arise and by reason of the truth of the contextual imputation/s no further harm is done to the plaintiff’s reputation.

Absolute Privilege

Defamatory words uttered or otherwise published in Parliament or in any Australian court of law or legal tribunal are said to be published on an occasion of absolute privilege.  The objective of such defence is to promote the free and open discussion or debate of matters which arise for consideration before Federal Parliament or any State Parliament or before any Australian court or tribunal.

Publication of Public Documents

Section 28 of the Defamation Act 2005 provides a defence in circumstances where the defendant is able to prove that the defamatory matter was contained in a public document or a fair summary of a public document.

“Public document” is defined in the Act and includes such things as a report or paper published by a parliamentary body, court or tribunal.  Examples of public documents include Hansard reports, reports of parliamentary committees, court judgements and transcripts.

“Australian court” is defined to mean:-

“any court established by or under a law of an Australian jurisdiction (including a court conducting committal proceedings for an indictable offence”

Fair Report of Proceedings of Public Concern

The legislation provides a defence in circumstances where a defendant proves that that the defamatory matter complained of was a fair report of “proceedings of public concern”.  That term is given a very broad definition.  In summary it includes public proceedings of:-

  • a parliamentary body;
  • any international organization of the government of any country;
  • an international conference;
  • the International Court of Justice or any other international judicial or arbitral tribunal;
  • a local government body;
  • a learned society;
  • a sporting or recreation body;
  • a trade union;
  • corporate shareholders.

(this list is not exhaustive).

Qualified Privilege for Provision of Certain Information

Pursuant to the statutory defence found under the Defamation Act, in order for a defendant to rely upon this defence the following three elements must be proven, namely:-

  1. That the recipient of the information which is alleged to contain some defamatory matter had an interest or apparent interest in receiving such information in relation to some subject; and
  2. That the matter was published to the recipient in the course of giving to the recipient information on that subject; and
  3. The conduct of the defendant in publishing that information was reasonable in the circumstances.

In seeking to rely on this defence a defendant must be able to prove that he/she acted reasonably.  Some of the matters that a court is required to take into consideration in determining this question are prescribed in section 30(3) of the Act. 

For writers and journalists it is imperative that every effort is made to give any person the subject of a publication an opportunity to put their point of view and that their response is published or broadcast as part of the story.

A defence of qualified privilege is lost if a plaintiff is able to establish that the defendant did not act in good faith or was actuated by malice toward the person defamed.

Honest Opinion

Honest opinion is a defence which is available where a defendant is able to prove:-

  1. That the publication was an expression of opinion and not a statement of fact; and
  2. The expression of opinion related to a matter of public interest; and
  1. The opinion was based on proper material.

“Proper material” is defined as material which is substantially true, or published on the basis of absolute or qualified privilege, as referred to above or as contained in “public documents” as provided under section 28 or a “fair report” pursuant to section 29.

The defence is lost in circumstances where a plaintiff is able to show that the opinion was not honestly held by the defendant at the time of publication.

This article has been prepared to provide a general overview of this topic and is not intended to provide, nor does it constitute, legal advice. You should seek legal advice before acting on or using the content of this article. Should you require legal advice on matters raised in this article please contact Mark Jones - Special Counsel on (07) 3001 2999.

Authors

Mark Jones is a Special Counsel at Bennett & Philp Lawyers

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