Last updated 23 January 2017

If you have been accused of saying or publishing something defamatory there may be a number of defences available to you. In the reverse, prior to making a defamation claim you should think about the defences that may be available to the publisher to ensure that your claim can proceed.

If a defence is successfully made out, the publisher will not be required by the court to apologise, pay damages (money) or remove the matter.

The defences are designed to ensure that defamation suits do not put unreasonable limits on free speech and to ensure that the business of the courts and governments can proceed without the risk of defamation claims being made.

According to the Defamation Act 2005 (Qld) (Defamation Act) and the common law, defences include:

  • justification
  • contextual truth
  • absolute privilege
  • public documents
  • fair report of proceedings of public concern
  • qualified privilege
  • honest opinion
  • innocent dissemination.

Justification

It is a defence to a claim of defamation if you can prove that the matter is substantially true (i.e. true in substance or not materially different from the truth) (s 25 Defamation Act).

For a case example see Cross v Queensland Newspapers Pty Ltd [2008] NSWCA 80, where a newspaper published comments that a Gold Coast real estate agent was ‘ripping off’ investors by selling properties at ‘exorbitant prices’. The court found by looking closely at the practices and the sales by Mr Cross that there was not enough evidence to show that he was ‘ripping off’ investors by selling properties at ‘exorbitant prices’. Mr Cross was therefore successful in his claim against the newspapers. Also, in Caccavo v Daft [2006] TASSC 36, the court said ‘The justification plea does not need to allege the truth of every last meticulous detail of the plaintiff’s drafted imputation, but sufficient must be alleged so that if proved the truth of the sting of the imputation will be established’.

Contextual truth

The defence of contextual truth applies where there is a publication which has a number of defamatory imputations, some of which are true and some are not, but the untruthful imputations do no further harm to the reputation of the defamed person than the true imputations (s 26 Defamation Act).

Absolute privilege

This defence applies to matters spoken in the course of a court or tribunal proceeding and matters published by politicians when they are in parliament (s 27 Defamation Act).

Public documents

This defence applies where the defamatory matter was:

  • contained in a public document (e.g. court judgments, legislation, documents issued by the government or reports prepared for parliament)
  • published honestly for the information of the public or the advancement of education (s 28 Defamation Act).

Fair report of proceedings of public concern

This defence applies where the defamatory matter was, or was contained in, a fair report of any proceedings of public concern (s 29 Defamation Act). Proceedings of public concern include things such as proceedings in public (e.g. a parliamentary body, court, tribunal or local government).

Qualified privilege

Unlike the defence of absolute privilege, this is a defence with turns on the particular facts. The Defamation Act provides that this defence applies if the:

  • person receiving the defamatory matter has an interest in having that information on a particular subject
  • matter is published to that person in the course of being given information on that particular subject
  • conduct of the person publishing the matter is reasonable in the circumstances (s 30 Defamation Act).

Examples where qualified privilege could apply are:

  • the collection of information by police officers when investigating a crime
  • the giving of a reference.

The defence cannot be used to justify ‘malice’, that is if the matter has been published with the desire to cause harm.

The High Court considered the common law defence of qualified privilege in a matter involving the radio station 2GB (Harbour Radio Pty Ltd v Trad [2012] HCA 44. In that case, at a protest held shortly after the Cronulla Riots, Mr Trad (the plaintiff) spoke to the audience and said there is ‘… a great deal of shame in tabloid journalism …’ and that ‘… one talk-back radio station … seems to be nothing other than the mouthpiece of the Howard government over the last few years’.

The next day a 2GB journalist who had attended the rally spoke of Mr Trad’s comments on the radio.

The court found that the imputations that could be made from the 2GB broadcast about Mr Trad was he:

  • stirred up hatred against a 2GB reporter which caused him to have concerns about his own personal safety
  • incites people to commit acts of violence
  • incites people to have racist attitudes
  • is a dangerous individual
  • is a disgraceful individual
  • is widely perceived as a pest
  • deliberately gives out misinformation about the Islamic community
  • attacks those people who once gave him a privileged position.

Ultimately the High Court found that 2GB had a defence of qualified privilege for all of the above except with respect to ‘is widely perceived as a pest’ and ‘attacks those people who once gave him a privileged position’. The court said:

‘Mr Trad had attacked 2GB by placing at least part of the blame for the Cronulla Riots upon the tabloid journalism practised by one particular talk-back radio station, namely 2GB. It was a relevant and reasonable response by 2GB to direct attention to the credibility of the attacker by imputing hypocrisy to Mr Trad as one who himself incited people to commit acts of violence and to have racist attitudes, and as one who at the peace rally had stirred up hatred against a 2GB reporter, causing him concern about his personal safety.’

Honest opinion

This defence applies where the defamatory matter was an expression of opinion rather than a statement or fact, relates to a matter of public interest and is based on material which is substantially true, public documents or material published under the protection of absolute privilege (s 31(1) Defamation Act). This defence will also apply where the matter was an expression of opinion of an employee or agent of the person who published the matter, or where the matter was an expression of opinion of a person other than an agent or employee (s 31(2)-(3) Defamation Act).

Innocent dissemination

This defence applies if the person who published the defamatory matter did so in the capacity, or as an employee or agent, of a subordinate distributor. The person who published the defamatory matter must also neither have known, nor ought reasonably to have known, that the matter was defamatory and their lack of knowledge must not be due to any negligence on their part (s 32 Defamation Act).

A person is a subordinate distributor if they:

  • were not the first or primary distributor of the matter
  • were not the author or originator of the matter
  • did not have any capacity to exercise editorial control over the content or the publication of the matter before it was first published.

A person will generally not be the first or primary publisher of any matter if they are merely a bookseller, librarian, broadcaster or an internet service provider. The internet service provider would not be treated as the first or primary distributor of a defamatory matter that is contained in an email sent using the service, unless the service provider was the author or originator of the matter or had the capacity to exercise editorial control over the matter.

Triviality

This defence applies if the publication of defamatory matter in the circumstances will unlikely result in the defamed person sustaining any harm (s 33 Defamation Act).