What do you do when you believe someone has published defamatory content and damaged your reputation? The first step is to issue a concerns notice, however, what if the matter is still unresolved? Is it appropriate to then commence defamation proceedings in court? Before doing so, you should know what defences a publisher may rely on under the Defamation Act 2005 (NSW). Below, we set out eight defences to defamation including justification, triviality and innocent dissemination. 

1. Justification

It is a defence to publishing defamatory material if the publisher can prove that the defamatory imputations of the material are substantially true.

2. Absolute Privilege

Another defence to defamation arises if the publisher can demonstrate that they published the content in the course of proceedings that attract absolute privilege, including:

  • Parliamentary bodies;
  • Australian courts or tribunals;
  • The Ombudsman;
  • The Privacy or Information Commissioner;
  • The Law Reform Commission; or
  • Certain legislation such as the Workers Compensation Act(s) and Motor Vehicle Act(s).

3. Publication of Public Documents

Proof that defamatory material was part of a public document (or copy thereof) or a fair summary/extract from a public document is also one of the defences to defamation.

A public document is considered to be one of (but not limited to) the following:

  • Report, paper or record of a parliamentary body;
  • Judgment, order or determination of a court or tribunal;
  • Report or document under the law of any country which has been authorised to be published or is required by a parliamentary body;
  • Document issued by the government of a country;
  • Record open to inspection by the public;
  • Document that is issued, kept or published in another Australian jurisdiction and treated as a public document; or
  • Document relating to Special Commissions of Inquiry or Civil and Administrative Tribunal.

The person defamed can negate this defence if he or she can show that the material was published dishonestly.

4. Fair Report of Proceedings of Public Concern

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 in a parliament, court, tribunal, government body or before the Ombudsman.

5. Qualified Privilege for Provision of Certain Information

Another defence to defamation exists if the publisher can prove the following:

  • The person who saw the material has an interest in having information on the subject;
  • The material was published to give the person such information; and
  • The publisher’s conduct was reasonable. 

The person defamed can negate this defence if they show that the material was published maliciously.

6. Honest Opinion

It is a defence to publishing defamatory material if the publisher can prove that the:

  • Material was an expression of their own, their employee or agent, or of another person other than their own, rather than a statement of fact;
  • Opinion related to a matter of public interest; and
  • The opinion was based on material that is substantially true or privileged.

The person defamed can overcome this defence by proving the following:

  • Opinion was dishonest;
  • Publisher did not believe the employee or agent honestly held the opinion; or
  • The publisher had reasonable grounds to believe another person did not hold the opinion at the time of publication.

7. Innocent Dissemination

It is a defence to publishing defamatory material if the publisher can prove that they:

  • Published the material in the capacity of a “subordinate distributor”  meaning that they were not the primary distributor;
  • Neither knew or could not have reasonably known that the matter was defamatory; and
  • Did not have the knowledge because of any negligence.

8. Triviality

It is a defence to publishing defamatory material if the publisher can prove that the material was unlikely to cause harm.

***

The first step in any defamation case is to speak to a qualified disputes lawyer before issuing a concerns notice. It is important to consider then what defences are available to a publisher before commencing legal proceedings. If you believe someone has published defamatory material about you, get in touch with our disputes team on 1300 544 755.

Rachel Amiri

Next Steps

Would you like to get in touch with Rachel about this topic, or ask us any other question? Please fill out the form below to send Rachel a message!