In the course of reporting, journalists are likely to cover controversial events or unsubstantiated allegations about politicians, entertainers or those undergoing trial. If you work in journalism, understanding Australia’s defamation laws is crucial in identifying the risks associated with publishing potentially defamatory content. This article sets out the necessary elements to make out a claim, and the top defences journalists and news publishers rely on against defamation.
What Are the Elements for Defamation?
On a practical level, it is best practice to ask yourself two questions when it comes to defamation, namely:
- Is the content I am about to publish defamatory content?
- Is there a defence available that I can rely on in my circumstances?
To answer the first question, you will need to be familiar with the elements of defamation set out in the various state legislations. For a statement to be considered defamatory, you must meet the following three criteria.
1. The statement must convey a defamatory meaning or imputation
It is important to remember that a person must prove that the words published would make others either think less, shun or avoid the individual. It is not enough that the words portray the defamed person in a negative, or even in a ridiculous light. The courts have held that what the journalist intended to say is not to be taken into consideration.
2. It is reasonable to interpret the statement as referring to the defamed person
If the publication does not name the person, they need to prove that at least one person understood the article to refer to the allegedly defamed person. Here, the court also regards the journalist’s intention as irrelevant.
3. The journalist has published the statement to at least one person, other than the defamed person or journalist
The defamed person must establish that the material was published to at least one other person, apart from the journalist or to themselves. A defamed person has one year to commence proceedings unless they can prove to the courts that it was not reasonable under the circumstances to do so. If they can prove this, then the period will be extended to three years. Web publishers need to take extra precaution as the one-year litigation period will reset and begin each day the material is online and downloaded.
What are the Key Defences Against Defamation for Journalists?
If a journalist published defamatory material, they should know what defences are available under state legislation. We summarised the most common defences below.
1. Truth as the defence to defamation
A journalist relying on this defence must ensure they have enough admissible evidence to prove the truth of any implications arising from the defamatory content they have published. For example, a journalist who states that a person is a convicted murderer can rely on this defence if the court convicts the person of murder in Australia.
Contextual truth occurs where a publication contains several defamatory implications, and the journalist can only prove the truth of the most serious ones. The rationale behind the contextual truth defence is that by publishing the most serious facts, the journalist cannot further harm the reputation of the person even if the journalist cannot prove the less serious implications.
2. Fair report as a defence to defamation
The fair report defence allows journalists to publish certain statements regardless of its truth. The statements are allowed where they fall in line with public concern. The relevant state and territory legislation will list these concerns in their ‘fair reports’. The fair reports must contain the defamatory matter for the journalist to rely on the defence.
3. Publication of a public document as a defence to defamation
Journalists are permitted to publish public documents or a fair summary or extract of the public document. Public documents include:
- parliamentary papers and reports;
- civil court judgements and orders; and
- government records, courts and statutory bodies which have been made available to the public.
4. Qualified privilege as a defence to defamation
If you cannot prove the truth of the defamatory material, you may be able to rely on the defence of qualified privilege. This defence applies in situations where you must communicate important material, regardless of whether it is defamatory. The High Court of Australia has extended this defence to political and governmental matters. You must prove three elements to rely on this defence, namely:
- there is an interest or apparent interest in sharing information to the recipient;
- you published the matter in the course of giving the information to the recipient; and
- your conduct is reasonable in the circumstances.
5. Honest opinion
You can best apply this defence to opinion and commentary material published in the news. By relying on this defence, a journalist can publish harsh criticism on sports, events, restaurants, films and even theatre performances. These publications can be in the form of reviews, columns and editorials. However, this defence will only succeed if you satisfy the following three elements:
- The matter was an expression of opinion and not a statement of fact;
- The opinion related to an issue of public interest; and
- You based your opinion on proper material.
You must honestly hold your opinion at the time you publish the material to satisfy this defence. Topics which the courts have found to be matters of ‘public interest’ include:
- public conduct of a person involved in public affairs;
- public entertainment or sports;
- any literary work or book;
- merits of any court case or a person involved in the case; or
- any communication to the public on any topic.
It is important that all journalists understand defamation law in Australia. Understanding the elements of defamation and the defences media personnel can rely on is useful for all journalists regardless of their particular beat. If you have any questions or need assistance responding to a defamation claim, get in touch with our disputes lawyers on 1300 544 755.