Defamation

Individuals, non-profit organisations and corporations employing less than ten people have a legal right to sue for defamation.

Section 9 of the Defamation Act 2005 excludes the following people or entities from bringing a claim for defamation.

• any corporation (that has not been excluded – see below) where defamatory matter has been published about that corporation. However, an individual within a corporation or government body can sue if a publication specifically criticises the way in which a person undertakes their duties or public functions.
• a person seeking to represent a deceased person.

An excluded corporation that CAN bring a defamation claim refers to:

• a non-profit organisation that is not an entity of another corporation OR
• a corporation with less than ten employees AND
• the corporation is not a public body (ie. government entity.)

Any large corporation, government entity or individual that has made a defamatory statement can be sued.

Truth is a complete defence to an allegation of defamation. If a defendant (the ‘defamer’) proves, on the balance of probabilities, that defamatory imputations are substantially true, then a defendant will not be liable for defamation.

A plaintiff (the person defamed) is not required to prove that defamatory imputations are false.

Contextual truth refers to one or more of the alleged defamatory imputations containing substantial truth, whilst the remainder are false; and do no further harm to the plaintiff. 

For example, if the media reports that a football player has behaved aggressively in their last three matches, but the player received a Player Red Card in two of three matches, and a Player Yellow Card in another, then the defence of contextual truth may apply. When the publication is considered as a whole, there is substantial truth that the player has behaved aggressively. However, no further harm could be sustained to the reputation of the player by erroneously alleging that all three matches were played aggressively.

Where public policy is prioritised as having greater importance than privacy, immunity from defamation may be granted. Examples of where absolute privilege applies are within parliamentary proceedings, and the proceedings of an Australian court or tribunal. Other situations may also apply.

The onus of proof rests on the defendant to prove that defamatory material had absolute privilege.

A public document is not defamatory if it is a fair copy, fair summary or fair extract of the original document.

Section 28 of the Defamation Act 2005 defines a public document as ‘a report or other document under the law of a country’ that meets the formal requirements of a public document. Specific examples include, but are not limited to court judgments, public records, deeds etc.

The onus of proof rests upon the defendant when using this as a defence.

This is a similar defence to the publication of public documents in that the publication of defamatory material may be a fair copy, fair summary or fair extract of a report. However, the difference is that the matter may be found in any proceeding of public concern, and not just a public document. This is because there may be a public interest in having this information.

Section 29(4) of the Defamation Act 2005 (“The Act”) defines ‘proceeding of public concern’ broadly. It includes, but is not limited to:

• public proceedings of a national or international parliamentary body or conference; or
• public proceedings of any court or tribunal of any country including the International Court of Justice; or
• public inquiries under the law or authority of any country or government; or
• certain types of proceedings of learned societies, or sport and recreation, or trade associations; or
• proceedings of a public shareholder’s meeting of a public company under the Corporations Act 2001; or
• any public meeting of public interest such as advocating for a person to hold a public office; or
• proceedings relating to an Ombudsman report of any country; or
• other public proceedings as defined by the Act.

A defence exists where the matter is shown to be contained in an earlier published report of any proceedings of public concern. Here a defendant must be able to demonstrate no prior knowledge or reasonable awareness that the earlier published report was unfair.

A plaintiff may defeat this defence if it can be proven that the defamatory matter was not published honestly for the advancement of education.

This defence is intended to protect freedom of expression in matters that are of public interest.  A defendant bears the onus to prove that the published material relates to an issue of public interest; and that a reasonable belief was held that the matter was in the public interest.

A court will consider all of the circumstances of the case to determine whether a defence can be established. Factors that a court may take into consideration include, but are not limited to:

• the seriousness of an imputation alleged to be defamatory, 
• distinctions made between suspicions, allegations, and proven facts,
• commentary on the public performance or activities of the person allegedly defamed,
• whether circumstances warrant the expeditious publication of the matter,
• sources of the information. If confidential, whether confidentiality is appropriate,
• whether the information is balanced, containing both sides,
• whether  any other steps taken to confirm the accuracy of the information published, and / or
• freedom of expression versus the public interest.

Qualified privilege facilitates the communication of certain information without a risk of being sued for defamation. It occurs in situations where a publisher (EG. an employer providing a reference) has an obligation to communicate information, and a recipient has a corresponding interest in receiving it.

A defence of qualified privilege can be defeated if a plaintiff can prove that the defamatory statement was malicious, and therefore unreasonable in the circumstances because it did not constitute ‘honest communication’.

Publications engaging in academic or scientific peer review are protected from defamation suits providing that certain publication requirements are met. Protection is granted to ensure that industry standards are maintained or exceeded. 

A defendant must show that the defamatory matter, published in a scientific or academic journal, relates to a scientific or academic issue where an independent review takes place. The independent review must be carried out before the matter was published, either the journal’s editor if the editor has expertise in the issue reviewed) or at least one person who has such expertise.

A plaintiff may defeat this defence by proving that the assessment was defamatory because it was not published honestly for the advancement of education.

Publishers are permitted to express an honest opinion on a matter of public interest, providing that the opinion has been based on proper material, and has not presented as a statement of fact.

A plaintiff must show that a publisher’s opinion could not have been honestly held on the material available, and was presented as a statement of fact rather than an opinion; whilst a defendant must show the contrary.

“…It must be accepted that a defence for … honest opinion can only be available in respect of expression of opinion.” (Mackie v John Fairfax & Sons Ltd [1966] 1 NSWR 641.)

This defence exists to protect entities such as librarians, booksellers, internet service providers, retailers and newsagents from being sued for facilitating the provision of defamatory material. In law, these entities are classified as agents or employees of subordinate distributors (not a first distributor) of defamatory material.

A defendant must prove that they had no knowledge that the publication was defamatory, and were not negligent in failing to have that knowledge.

This remedy may be granted to compensate for a loss of employment or other financial losses, including business. Damages are not limited to a specific amount but are proportionate to the loss suffered.

This remedy is awarded to ameliorate feelings of distress, hurt and suffering. The maximum amount that can be claimed is limited to $250,000.

Aggravated damages – This remedy may be claimed where the defendant’s conduct is reprehensible. This may amount to a refusal to apologise or to make a retraction of the defamatory material. A failure to check the truth before publishing may also constitute reprehensible conduct. The extent of exposure and the mode used to disseminate the information may also be considered. 

A plaintiff will not be awarded aggravated damages where it can be shown that the defendant sought to mitigate the damage done to the plaintiff.

Aggravated damages may be claimed as a separate head of damages that may exceed the $250,000 cap on damages for non-economic loss.

An injunction is a remedy that courts apply to prevent defamatory material from being published or to cease the continued publication of defamatory material.