Defences to Defamation

Defamation law is fundamentally concerned with striking a balance between the protection of a person’s reputation and freedom of speech. The need to preserve freedom of speech is underpinned and recognised by the various defences to defamation, including the defences of truth, honest opinion, and public interest.

Defamation Law is a complex area of law that requires careful consideration and understanding of the parameters and legal implications.

You first need to establish if you published a defamatory statement/s and if the person claiming so has been identified. Consider your defences (if any) and whether you can make an offer to make amends by way of an apology, correction, clarification or retraction of the defamatory material. It is always advisable to seek your own independent legal advice in the event you have a defamation claim made against you and before responding to such a claim.

Generally speaking, any person can sue for defamation (dead people cannot be defamed) but most of the time, companies cannot sue for defamation (exceptions apply).

Companies That Cannot Sue:

  • Public bodies such as local government councils. However, people employed by, or elected to, government authorities may be able to sue for defamation.
  • General groups of people (eg lawyers, doctors, university students, etc) unless the group is so small that a person could say they were readily identifiable.
  • A group that is not a legal entity (such as an unincorporated association or a social club) even if its individual members can prove they were defamed by a statement made about the group. Again, if the group is small enough, individuals in the group may sue.

Companies That Can Sue:

  • A non profit group or organisation that has a recognised legal status (such as a trade union or an incorporated association)
  • A company can be defamed though only small corporations can sue. This includes those which employ 10 or less people which are not related to any other corporation.

 

Remember:

Companies, like people, have reputations that can be damaged. Although they can claim damages for loss of reputation, they can’t get anything for injury to feelings.

Persons or bodies who suffer damage from publications who can’t sue for defamation may be able to sue for injurious falsehood.

SOURCE: LAWHANDBOOK.SA.GOV.AU

Defences to Defamation Action

Stage 1 of reforms to the Uniform Defamation Laws (2021 Amendments) commenced in July 2021 in New South Wales, Victoria, South Australia, Queensland and the Australian Capital Territory. The reforms introduced a number of key changes into the law including amendments to the defences available for defamation.

To access a summary of the new reforms, click here and scroll to “Defamation Provisions.”

Let’s explore some common defences to defamation below;

 

Truth (Justification)

A defence of justification, or truth, in defamation law is when a defendant can prove on the balance of probabilities that the defamatory imputations of which the plaintiff complains are substantially true. Using justification is a complete defence.

Recently, the defamation action brought by Bruce Lehrmann against Channel Ten and journalist Lisa Wilkinson was able to be defeated with a successful truth (justification) argument.

Justice Lee said he was satisfied that Ten and Wilkinson had proved to the civil standard, on the balance of probabilities, that Mr Lehrmann raped Ms Higgins in the office of their then-boss, Linda Reynolds.

Concluding his judgement, Justice Lee revealed the big “mistake” made by Mr Lehrmann in relation to the proceedings:

“Having escaped the lion’s den, Mr Lehrmann made the mistake of coming back for his hat,” Justice Lee said. This comment is in relation to Mr Lehrmann’s October 2022 criminal trial in the ACT Supreme Court which was abandoned following juror misconduct. The charges against him were later completely dropped, with prosecutors saying a retrial would pose an “unacceptable risk” to Ms Higgins’ mental health. He has continually denied raping Ms Higgins.

It’s important to note that the ruling was not a criminal conviction.

For more information read Section 25 of The Defamation Act 2005 here.

 

Honest Opinion

This is when a defendant expresses matters of public interest as a fair comment/opinion and not a statement of fact. The honest opinion expressed must not be proven to be malicious and based on proper material to be upheld.

See below for “Defences of Honest Opinion” as per The Defamation Act 2005 and click here for more on Section 31.

 

Public Interest

This is a new defence for defamation introduced with the reforms in 2021 with the aim of assisting journalists and media publications in publishing matters of public interest. The effectiveness of this defence will depend on its application by the presiding judge and if they consider it reasonable for the journalist/media publication to have published the material in question due to public interest.

For more information read Defamation in the Public Interest PDF here.

 

Absolute Privilege

Absolute privilege protects individuals who make statements about other members in the course of public forums or proceedings which includes parliament and court/tribunal.

For more information read Section 27 of The Defamation Act 2005 here.

 

Qualified Privilege

Qualified privilege protects situations where honest and frank communication is in the best interest of society. This can include statements made by a person under a legal or moral duty to another person, statements made to further a legitimate common interest and discussion of government and political matters (to name a few, there are many instances of qualified privilege being applicable).

For more information read Section 30 of The Defamation Act 2005 here.

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Innocent Dissemination

The defence of innocent dissemination is intended to protect people such as newsagents, booksellers, librarians and internet service providers (ISP) who unwittingly publish defamatory matter without negligence on their part.

Innocent dissemination will be upheld if the defendant can prove that they published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor and the defendant neither knew, nor ought to have reasonably known, that the matter was defamatory and the defendant’s lack of knowledge was not due to any negligence on the part of the defendant.

For more information read Section 32 of The Defamation Act 2005 here.

 

Publication of Public Documents

This defence provides protection from liability for the publication of public documents which are relevant to an open and transparent political and legal system. Access to public documents supports the principle of open justice and accountability in our public institutions.

For more information read Section 28 of The Defamation Act 2005 here.

 

Contextual Truth

Contextual truth requires at least one or more imputations complained of to be substantially true, and in light of the substantial truth of those imputations, the remainder of the imputations complained of do no further harm to the plaintiff’s reputation.

For more information read Section 26 of The Defamation Act 2005 here.

 

At Litton Legal we’re experts in Defamation Law. If your reputation has been damaged or you’ve been accused of defaming somebody, we can help. Contact our friendly team here.