Defamation Defences

What are the defamation defences or privileges for defamation of character?:

Justification – if the Defendant proves the lies or insults (defamation) were substantially true.

Contextual Truth – if the Defendant proves that in addition to the defamatory imputations complained of, there was one or more other defamatory imputations that were made and were substantially true, such that the defamation complained of could not have damaged the Plaintiff’s reputation any more than it was already damaged by the ones that were substantially true

Absolute Privilege – if the Defendant proves the defamation of character occurred during the course of proceedings of a parliamentary body; during the course of a court or tribunal hearing; or on an occasion that, if published in another Australian jurisdiction, it would be an occasion of absolute privilege under a law of that jurisdiction. Even if it consisted of lies or insults, it is protected although there may be other means available to complain and restore or protect your character.

Public Document – if the Defendant proves the defamatory material was contained in, or was a fair copy, summary or extract from a public document.

Fair Report of Proceedings of Public Concern – if the Defendant proves the defamatory material was, or was contained in, a fair report of any proceedings of public concern. Public proceedings include those of a parliamentary body, international organisations and conferences, international and domestic courts and tribunals, sport/recreation/trade associations, Ombudsman’s reports and other proceedings that are treated as proceedings of public concern.

Qualified Privilege – if the Defendant proves: the recipient had an interest or apparent interest in having information on a subject; AND the defamation occurs in the course of giving to the recipient information on that subject; AND the defendant’s defamatory conduct is reasonable in the circumstances.

Honest Opinion – if the Defendant proves it was their honest opinion (as opposed to a statement of fact; the opinion was based on proper grounds and that publication of the opinion was in the public interest.

Innocent Dissemination – if the Defendant proves he or she was not the author or the first distributor of the defamatory material and was unaware that the publication was defamatory and this lack of knowledge must not have been due to the defendant’s negligence. This is a useful defence for booksellers, newsagents and broadcasters.

For claims for publications occurring wholly on or after to 1 July 2021, that is has not, and is unlikely to, cause serious harm (for a corporate plaintiff that means serious financial loss); this defence can be applied at the very outset of a claim, with a defendant applying to have the claim dismissed summarily (summary judgment);

For claims that include a publication that occurred prior to 1 July 2021, Triviality – if the Defendant proves that the Plaintiff was unlikely to have suffered any harm from the defamation.

Alex Nelson is a Brisbane Barrister practicing in Defamation Law.


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