In Short
- Defamation defences include public interest, truth, honest opinion, absolute privilege, and innocent dissemination.
- The 2021 Voller Decision holds businesses accountable for defamatory third-party comments on their social media posts.
- Public documents and fair reports of proceedings are also valid defences against defamation claims.
Tips for Businesses
Monitor your social media and online platforms for defamatory third-party comments, as the Voller Decision holds businesses responsible for such content. If accused of defamation, review available defences, such as truth or public interest, and seek legal advice to protect your business effectively.
If you have been accused of defaming a person or a small business or are looking to make a claim in defamation, it is important that you understand the relevant defences. Following reforms to defamation law in 2021, there is now a wide range of available defences that you can employ to combat a defamation claim. This article will set out the defences available to defamation and their requirements.
1. Public Interest Defence
The public interest defence seeks to assist journalists and media organisations in publishing matters that are of public concern or interest without the threat of defamation proceedings. Factors that a court will take into consideration when determining whether a party can establish the defence of public interest include:
- the seriousness of the suggestions carried by the matter published;
- the extent to which the publication distinguishes between allegations, suspicions and proven facts;
- the extent to which the publication relates to the performance of the person’s public functions or activities;
- whether publishing the matter quickly was in the public interest;
- the sources relied on their integrity, and if the source is anonymous, whether there is a good reason for confidentiality;
- whether the matter published contained the substance of the allegedly defamed person’s side of the story or if there were reasonable attempts made to publish a response from that person;
- any other steps that were taken to verify the information in the publication; and
- the importance of freedom of expression in the discussion of matters in the public interest.
2. Honest Opinion Defence
The honest opinion defence could apply if the communication that a party alleges to be defamatory is:
- your honest opinion; and
- considered to be substantially true/in the public interest; and
- based on proper materials.
Additionally, there is no suggestion that the law requires the opinion to be reasonable. Therefore, the opinion could even be extreme as long as the person publishing it genuinely holds the opinion.
If you would like to raise this as a defence to a defamation claim, you must be very considerate in your response. This is because statements such as “I didn’t mean it” will preclude you from being able to rely on the defence and assert that the communication was your honest opinion later on.
Based on Proper Material
Firstly, an honest opinion must be based on some kind of proper material. Proper material is defined as being set out in the published communication in either specific or general terms or notorious or accessible from a reference, link, or other access point but otherwise apparent from the context in which the matter was published.
Substantially True
Secondly, the communication must be considered substantially true or could be considered an absolute or qualified privilege, or was published on an occasion that attracted the protection of this defence or the public interest defence or publication of public documents defence.
Continue reading this article below the form3. Absolute Privilege Defence
Furthermore, you may avoid liability for defamation if you can demonstrate that you published the content in a way that attracts immunity from a legal claim. This is called absolute privilege. For example, some types of publications that would attract the absolute privilege defence include:
- parliamentary materials;
- Australian court or tribunal judgments;
- the Law Reform Commission reports; or
- certain legislation, such as the Workers Compensation Act(s).
4. Truth Defence
If you can prove the material published was substantially true, then you can rely on the truth defence as a complete defence. This means that you will not be liable if you prove the implication to be true in substance or not materially different from the truth, even if it was defamatory.
Truth is difficult to prove because the evidence to prove truth must be admissible in court. Therefore, you will need original documents and witnesses who are credible and willing to testify to your character. Additionally, these witnesses will need to have firsthand knowledge of the relevant circumstances.
5. Innocent Dissemination
The defence of innocent dissemination is available to publishers who share content that someone else created. However, to rely on this defence, they must meet the requirements and prove that they:
- were not the primary distributor or author of the material, nor controlled its publication;
- neither knew or could not have reasonably known that the matter was defamatory; and
- did not have the knowledge because of any negligence.
You may rely on this defence if you are, for example, a bookseller, newspaper and magazine vendor, or broadcaster. However, it is still unclear how this defence applies to online platforms. You should remain aware of the alleged defamation’s context, and know that other factors can amount to participation in the process of publication.
The Voller Decision
Additionally, in a 2021 court case, the Voller Decision, the High Court found that news organisations were the publishers of third-party Facebook comments. This finding implies that a business that publishes posts on its social media page or website can now be held responsible for defamatory comments made on the post by third parties. This is true whether or not the business is aware of the relevant defamatory content.
Therefore, businesses or individuals can no longer argue that they have no knowledge of the comments. They must take steps to monitor high-risk posts and remove potential defamatory comments.
The Voller decision is why media outlets such as ABC News, The Daily Aus, and 9News now disable comments on posts that have the potential to incite defamatory comments from social media users viewing the content on platforms like Instagram and YouTube.
6. Publication of Public Documents
Proof that defamatory material was part of a public document or a fair summary/extract from a public document is also one of the defences to defamation. A public document may be a:
- report, paper or record of a parliamentary body;
- judgment, order or determination of a court or tribunal;
- document issued by the government of a country; or
- record open to inspection by the public;
The person defamed can counter this defence if they can show that the material was published dishonestly.
It’s now easier than ever to start a business online. But growing and sustaining an online business requires a great deal of attention and planning.
This How to Start an Online Business Manual covers all the essential topics you need to know about starting your online business.
The publication also includes eight case studies featuring leading Australian businesses and online influencers.
7. Fair Report of Proceedings
Publishers can also make out a defence if they can prove the material was, or was a part of, any report on proceedings publicly held before:
- a court;
- the parliament;
- a tribunal; or
- a government body.
Key Takeaways
Being accused of defamation and going to court can be a stressful experience, especially if you believe you have not purposefully harmed the other party’s reputation. As a result, it is important that you know what defences are available and their criteria before proceeding further.
If you would like assistance with defamation defences, contact LegalVision’s experienced litigation lawyers as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
The public interest defence aims to assist journalists and media organisations in publishing matters that are of public concern or interest without the threat of defamation proceedings.
Innocent dissemination arises where a third party distributes defamatory material created by someone else, but had no knowledge that it was defamatory.
We appreciate your feedback – your submission has been successfully received.
