The Defamation Act identifies nine defences a defendant may use to avoid liability. The defences are summarised below.
1.Justification applies when the material published is justified because it is the truth. If this defence is accepted, there can be no defamation as the plaintiff’s reputation has not been damaged. The published statement is merely stating what is already known.
2. Contextual truth applies when the defendant can show that, in addition to the material complained about by the plaintiff, the publication contains one or more statements that are substantially true. For example, if a newspaper publishes an article that is substantially true, but states amongst other matters that Bill Smith has been convicted of assault when in fact he has been convicted of armed robbery it is unlikely to harm Bill Smith’s reputation.
3. Absolute privilege is a complete defence that enables people to say whatever they want without being liable for defamation. The Defamation Act limits the number of situations where absolute privilege applies. These include statements made during parliamentary proceedings and publications made in the course of a proceeding of an Australian court or Australian tribunal. A politician who makes defamatory comments during a parliamentary sitting is able to claim the defence of absolute privilege. However, if the same politician makes the same comments outside the parliament, the defence of absolute privilege does not apply.
4. Publication of public documents applies to any fair publication or fair summary of a public document. Public documents include records of what was said in parliament or a court or tribunal proceeding. This defence will fail if the plaintiff can show the material was not published honestly for the information or education of the public.
5. Fair report of proceedings of public concern applies when the defendant publishes a fair report of any proceeding of public concern including parliamentary proceedings, public inquiries, local government proceedings, a public shareholders meeting, or proceedings of a sports or recreation association.
6. Qualified privilege may be argued in a limited range of situations where the defendant can show that the persons receiving the publication have an interest in the subject and that the defendant’s conduct in publishing the material is reasonable in the circumstances. Situations where this defence may be used include comments made in the course of writing a reference for someone, and statements made to the police. However, a defendant who abuses the privilege by being motivated by malice (spite) is not protected by this defence.
7. Honest opinion applies if the defendant can show that: (a) the matter was an expression of opinion rather than a statement of fact; (b) that the opinion relates to a matter of public interest; (c) that the opinion is based on proper material. Critical statements made by a reporter as part of a review of an art show, a music performance or a movie can be regarded as an honest opinion.
8. Innocent dissemination applies if the defendant can show they unknowingly sold or distributed a defamatory publication. The defence protects persons such as book sellers, newsagents, libraries or the provider of electronic services such as internet web sites. The defence will fail if the plaintiff can show the defendant knew or ought to have known the material was defamatory.
9.Triviality applies in circumstances where it is unlikely that the plaintiff will sustain any harm. An example is publication of material that is mildly offensive to the plaintiff.
1.Justification applies when the material published is justified because it is the truth. If this defence is accepted, there can be no defamation as the plaintiff’s reputation has not been damaged. The published statement is merely stating what is already known.
2. Contextual truth applies when the defendant can show that, in addition to the material complained about by the plaintiff, the publication contains one or more statements that are substantially true. For example, if a newspaper publishes an article that is substantially true, but states amongst other matters that Bill Smith has been convicted of assault when in fact he has been convicted of armed robbery it is unlikely to harm Bill Smith’s reputation.
3. Absolute privilege is a complete defence that enables people to say whatever they want without being liable for defamation. The Defamation Act limits the number of situations where absolute privilege applies. These include statements made during parliamentary proceedings and publications made in the course of a proceeding of an Australian court or Australian tribunal. A politician who makes defamatory comments during a parliamentary sitting is able to claim the defence of absolute privilege. However, if the same politician makes the same comments outside the parliament, the defence of absolute privilege does not apply.
4. Publication of public documents applies to any fair publication or fair summary of a public document. Public documents include records of what was said in parliament or a court or tribunal proceeding. This defence will fail if the plaintiff can show the material was not published honestly for the information or education of the public.
5. Fair report of proceedings of public concern applies when the defendant publishes a fair report of any proceeding of public concern including parliamentary proceedings, public inquiries, local government proceedings, a public shareholders meeting, or proceedings of a sports or recreation association.
6. Qualified privilege may be argued in a limited range of situations where the defendant can show that the persons receiving the publication have an interest in the subject and that the defendant’s conduct in publishing the material is reasonable in the circumstances. Situations where this defence may be used include comments made in the course of writing a reference for someone, and statements made to the police. However, a defendant who abuses the privilege by being motivated by malice (spite) is not protected by this defence.
7. Honest opinion applies if the defendant can show that: (a) the matter was an expression of opinion rather than a statement of fact; (b) that the opinion relates to a matter of public interest; (c) that the opinion is based on proper material. Critical statements made by a reporter as part of a review of an art show, a music performance or a movie can be regarded as an honest opinion.
8. Innocent dissemination applies if the defendant can show they unknowingly sold or distributed a defamatory publication. The defence protects persons such as book sellers, newsagents, libraries or the provider of electronic services such as internet web sites. The defence will fail if the plaintiff can show the defendant knew or ought to have known the material was defamatory.
9.Triviality applies in circumstances where it is unlikely that the plaintiff will sustain any harm. An example is publication of material that is mildly offensive to the plaintiff.