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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. Last year, new laws introduced reforms to the Defamation Act 2005. Stage 1 of these reforms commenced on 1 July 2021 in New South Wales, Victoria, South Australia, Queensland and the Australian Capital Territory. Additionally, the changes to the Defamation Act included amendments to the available defences. This article will set out the defences available to defamation and cover the new defences which have now come into effect for the states listed above. 

1. Public Interest Defence 

Changes to the Defamation Act replace the qualified privilege defence against defamation. Moreover, the changes establish a public interest defence that aims to assist journalists and media organisations in publishing matters that are of public concern or interest, without the threat of defamation proceedings. The new laws outline the factors that a court will take into consideration when determining whether a party can establish the defence of public interest, including:

  1. the seriousness of the imputations carried by the matter published;
  2. the extent to which the publication distinguishes between allegations, suspicions and proven facts;
  3. the extent to which the publication relates to the performance of the person’s public functions or activities;
  4. whether publishing the matter quickly was in the public interest;
  5. the sources relied on and the integrity of the sources, and if the source is anonymous, whether there is a good reason for confidentiality;
  6. whether the matter published contained the substance of the person’s side of the story in the publication and, if not, whether there were reasonable attempts made to publish a response from the person;
  7. any other steps that were taken to verify the information in the publication; and
  8. 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 in the public interest; and
  • based on proper materials.

Therefore, to establish this defence, you must be able to show that:

1. The Opinion is Based on Proper Material

Firstly, the 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 is notorious or accessible from a reference, link or other access point but otherwise apparent from the context in which the matter was published.

2. The Communication is 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.

As long as the communication is your honest opinion and meets the above requirements, you could rely on this defence. 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.

3. Absolute Privilege Defence

Another defence to defamation arises if the publisher can demonstrate that they published the content in a way that attracts absolute privilege. For example, some types of publications that would attract the absolute privilege defence include:

  • parliamentary materials;
  • Australian court or tribunal judgments;
  • Ombudsman reports;
  • the Privacy or Information Commissioner reports;
  • the Law Reform Commission reports; or
  • certain legislation, such as the Workers Compensation Act(s) and Motor Vehicle 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 even if the court finds an imputation to be defamatory, the publisher is not liable if they prove the imputation to be true in substance or not materially different from the truth.

Truth is difficult to prove because the evidence to prove truth must be admissible in court. Therefore, this means you will need original documents and witnesses who are credible and willing to testify to your character in court. Additionally, these witnesses will need to have firsthand knowledge of the relevant circumstances. Therefore, it cannot be statements that they have heard secondhand or hearsay evidence. 

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5. Innocent Dissemination

The defence of innocent dissemination is available to publishers who disseminate content that someone else created. However, to rely on this defence they must meet the requirements of the defence.

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, not the author, nor had any editorial control;
  • neither knew or could not have reasonably known that the matter was defamatory; and
  • did not have the knowledge because of any negligence.

The types of people that may rely on this defence include, for example, booksellers, newspaper and magazine vendors, and broadcasters of live radio or TV programs.

However, there are unresolved questions as to the application of the defence of innocent publication to online platforms. This is expected to be dealt with by the government in more detail in the coming year.

Further, there are specific legal cases where platforms such as Google and Facebook have tried to rely on this defence and have been found responsible for defamation.

The Voller Decision

Additionally, in a recent court case, the Voller Decision, the High Court found that news organisations were the publishers of the third party Facebook comments. The implication of this finding is that a business or company that publishes posts on their 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 they are aware of the relevant defamatory content.

Therefore, it is no longer open for businesses or individuals to argue that they had no knowledge of the comments. They must take steps to monitor high risk posts and remove potential defamatory comments.

6. 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 one of 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 counter this defence if they can show that the material was published dishonestly.

7. Contextual Truth

The contextual truth defence applies when you can prove that: 

  • one or more of the imputations alleged are substantially true; and
  • any other defamatory imputations alleged do not further harm the person’s reputation because of the substantial truth of the contextual imputations.

Note however, the contextual imputations must be the same imputations that the plaintiff is complaining about to establish this defence. 

8. 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; 
  • a government body; or
  • the Ombudsman.

Key Takeaways

If you want to make a claim against someone for defamation or someone has made a claim against you, it is important that you know what defences are available before proceeding further. If you need assistance with a defamation claim, contact LegalVision’s disputes and litigation lawyers on 1300 544 755 or fill out the form on this page.

Frequently Asked Questions

What are the changes to the Defamation Act 2005?

Reforms to the Defamation Act 2005 include amendments to the available defences. Further, stage 1 of these reforms commenced on 1 July 2021 in New South Wales, Victoria, South Australia, Queensland and the Australian Capital Territory.

What is the public interest defence?

The public interest defence is a new defence that aims to assist journalists and media organisations in publishing matters that are of public concern or interest, without the threat of defamation proceedings. Additionally, the new laws outline the factors the court will consider when determining if a party can establish this defence.

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