Defamation

What is defamation?

• Defamation law protects damage to reputations
• Defamation is any statement which would make a reasonable person think less of the person who is the subject of the statement.
• What makes people think less of you can change over time. For example; to call someone a de facto spouse or a rape victim 100 years ago might have been defamatory, but not now.

Elements of Defamation

The complainant must prove to a judge or a jury that:

• The communication has been published by the defendant; and
• The communication has been published to a third person; and
• The communication identifies or is about the plaintiff; and
• The communication is defamatory

Venue and time limits

The closest court to the place closest to the harm:

• Look to home address, place of work, place where reputation is best known etc
• Internet: where the matter is downloaded (Gutnick)

Time Limits

• 12 Months from first publication Defamation Act: Limitation Act 1969 (NSW) s 14B
• The general trend is for time to run from the date that the material is first published and that the internet is not continuous publication.

Vulgar Abuse

• Ian Cohen, the NSW upper house MP, called a developer a “bully” and a “thug” during a town hall meeting.
• The court found that the words were defamatory in that context unlike a person at a football game calling out to a player that he is a “thug” : Bennette v Cohen

Element 1: defamatory meaning

The requirement that this publication be of defamatory nature is satisfied upon establishing that the statements made are either, likely to damage the plaintiff’s reputation, cause the plaintiff to be “shunned or avoided”, or tend to put the plaintiff down in the view of others

Element 2: Communicated

The term “publication” in this context refers to “communication” of any form.

Element 3: Identification

The Plaintiff must prove that the publication identified them à Ordinary reasonable person test.

• A Person doesn’t have to be named
• You can unwittingly defame people with same name e.g. Detective Lee is corrupt or a fictional character’s name like Artemis Jones
• Backpack murders police quiz “Socialite” was sufficient to id
• A certain banker at X Bank handling the Y matter is corrupt. Only one banker is handling Y matter. Therefore Y is identified
• Current Affair runs a programme on trust and films men picking up a wallet. The imputation is that the person is a thief. Later the person takes the wallet to a police station.
• Sometimes failing to identify is dangerous because it opens up multiple law suits. Better to name in detail.

Multiple cases of defamation have indicated that the element of identity is established when the plaintiff can prove that the publication is “of and concerning the plaintiff”  even when there is no mention of the person’s name or particular description. 

Groups

• You can’t defame a class or group.
• g “All lawyers are thieves and rogues”. There are too many in the class to identify an individual. Around 5 -15 is the limit.
• The board may be small enough group to identify members
• The West Indies Cricket Team “took a dive” was not too large a group to identify the captain of the team
• In another cricket case a Woman complained that she was sacked because she was the only heterosexual member of the team. Being a lesbian is not necessarily defamatory however the suggestion that the selectors made a decision based on sexual preference is defamatory
• Unknown whether calling someone gay or lesbian would be defamation.
• It is still possible today that a jury of 6 would find the lesbian label defamatory

Other barriers

• Companies à A company can’t sue unless it has less than 10 employees or is not-for-profit but they may have other remedies like injurious falsehood and misleading and deceptive conduct available.

A company must be able to prove financial loss.

• Death à Can’t defame the dead as it is impossible to restore a reputation if the defamed is deceased

If the plaintiff is to succeed, the defamatory matter must be referable to or “of and concerning” the plaintiff. Frequently the plaintiff is not named or specifically described.

Some examples of matters “of and about the plaintiff” are as follows:

Cassidy v Daily Mirror Newspapers Limited [1929] 2 KB 331.

In this case the newspaper published a photograph of the plaintiffs husband with another woman with a statement that the couple in the photograph were engaged to be married. The court held that the publication was referable to the plaintiff. People who saw the publication and knew the plaintiff also knew fact that she lived with the man who was photographed.

It was referable to the plaintiff because the imputation was that she was not married to him and was instead the man’s mistress.

Lee v Wilson (1934) 51 CLR 276

A newspaper published an article alleging that “Detective Lee” was guilty of misconduct as a police officer.

In the relevant police force there were two Detective Lees and there was also a Constable Lee. The article was actually intended to refer to Constable Lee.

Both of the Detective Lees were able to maintain defamation actions against the newspaper.

Cause of action

A defamation is said to be actionable “per se”. In other words, the person defamed, (“the plaintiff’) does not need to prove that he or she has suffered damage, (see section 7(2)), of the Act.

Section 7 Distinction between slander and libel abolished

 (2) Accordingly, the publication of defamatory matter of any kind is actionable without proof of special damage.

 Defences

Section 25 Defence of justification

Section 26 Defence of contextual truth

Section 27 Defence of absolute privilege

Section 28 Defence for publication of public documents

Section 29 Defences of fair report of proceedings of public concern

Section 30 Defence of qualified privilege for provision of certain information

Section 31 Defences of honest opinion

Section 32 Defence of innocent dissemination

Section 33 Defence of triviality

25 Defence of justification

It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.

• The defence of justification (under section 25) which can also be referred to as “truth” applies to release the publisher from all liability where they are able to prove that all the defamatory imputations made were “substantially true”

Section 26 Defence of contextual truth

It is a defence to the publication of defamatory matter if the defendant proves that:

(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (“contextual imputations”) that are substantially true, and

(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

• Section 26 of the Act allows the defendant to raise a partial defence of contextual truth. This is where the defendant can evade liability for the minor defamatory claims made in conjunction with more serious claims which could be proven by the publisher to be true

Section 27 Defence of absolute privilege

(1) It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege.

(2) Without limiting subsection (1), matter is published on an occasion of absolute privilege if:

(a) the matter is published in the course of the proceedings of a parliamentary body, including (but not limited to):

(i) the publication of a document by order, or under the authority, of the body, and

(ii) the publication of the debates and proceedings of the body by or under the authority of the body or any law, and

(iii) the publication of matter while giving evidence before the body, and

(iv) the publication of matter while presenting or submitting a document to the body, or

(b) the matter is published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to):

(i) the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process), and

(ii) the publication of matter while giving evidence before the court or tribunal, and

(iii) the publication of matter in any judgment, order or other determination of the court or tribunal, or

(c) the matter is published on an occasion that, if published in another Australian jurisdiction, would be an occasion of absolute privilege in that jurisdiction under a provision of a law of the jurisdiction corresponding to this section, or

(d) the matter is published by a person or body in any circumstances specified in Schedule 1.

• Statements made in court or parliament. No action can be taken about speaker.
• Franca Arena said in NSW Parliament “The Premier and others had engaged in a conspiracy to cover up for paedophiles” and was protected.
• Difference between Absolute and Qualified: Malice irrelevant to Absolute Privilege
• The defendant has complete freedom of expression. Section 27 and schedule 1 of the Act identify situations in which absolute privilege applies.

 Section 28 Defence for publication of public documents

(1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was contained in:

(a) a public document or a fair copy of a public document, or

(b) a fair summary of, or a fair extract from, a public document.

(2) For the purposes of subsection (1), if a report or other document under the law of a country would be a public document except for non-compliance with a provision of that law about:

(a) the formal requirements for the content or layout of the report or document, or

(b) the time within which the report or document is prepared, or presented, submitted, tabled or laid to or before a person or body,

the report or document is a public document despite that non-compliance.

(3) A defence established under subsection (1) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.

(4) In this section, “public document” means:

(a) any report or paper published by a parliamentary body, or a record of votes, debates or other proceedings relating to a parliamentary body published by or under the authority of the body or any law, or

(b) any judgment, order or other determination of a court or arbitral tribunal of any country in civil proceedings and including:

(i) any record of the court or tribunal relating to the judgment, order or determination or to its enforcement or satisfaction, and

(ii) any report of the court or tribunal about its judgment, order or determination and the reasons for its judgment, order or determination, or

(c) any report or other document that under the law of any country:

(i) is authorised to be published, or

(ii) is required to be presented or submitted to, tabled in, or laid before, a parliamentary body, or

(d) any document issued by the government (including a local government) of a country, or by an officer, employee or agency of the government, for the information of the public, or

(e) any record or other document open to inspection by the public that is kept:

(i) by an Australian jurisdiction, or

(ii) by a statutory authority of an Australian jurisdiction, or

(iii) by an Australian court, or

(iv) under legislation of an Australian jurisdiction, or

(f) any other document issued, kept or published by a person, body or organisation of another Australian jurisdiction that is treated in that jurisdiction as a public document under a provision of a law of the jurisdiction corresponding to this section, or

(g) any document of a kind specified in Schedule 2.

 Section 29 Defences of fair report of proceedings of public concern

(1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern.

(2) It is a defence to the publication of defamatory matter if the defendant proves that:

(a) the matter was, or was contained in, an earlier published report of proceedings of public concern, and

(b) the matter was, or was contained in, a fair copy of, a fair summary of, or a fair extract from, the earlier published report, and

(c) the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair.

(3) A defence established under subsection (1) or (2) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.

(4) In this section, “proceedings of public concern” means:

(a) any proceedings in public of a parliamentary body, or

(b) any proceedings in public of an international organisation of any countries or of the governments of any countries, or

(c) any proceedings in public of an international conference at which the governments of any countries are represented, or

(d) any proceedings in public of:

(i) the International Court of Justice, or any other judicial or arbitral tribunal, for the decision of any matter in dispute between nations, or

(ii) any other international judicial or arbitral tribunal, or

(e) any proceedings in public of a court or arbitral tribunal of any country, or

(f) any proceedings in public of an inquiry held under the law of any country or under the authority of the government of any country, or

(g) any proceedings in public of a local government body of any Australian jurisdiction, or

(h) proceedings of a learned society, or of a committee or governing body of the society, under its relevant objects, but only to the extent that the proceedings relate to a decision or adjudication made in Australia about:

(i) a member or members of the society, or

(ii) a person subject by contract or otherwise by law to control by the society, or

(i) proceedings of a sport or recreation association, or of a committee or governing body of the association, under its relevant objects, but only to the extent that the proceedings relate to a decision or adjudication made in Australia about:

(i) a member or members of the association, or

(ii) a person subject by contract or otherwise by law to control by the association, or

(j) proceedings of a trade association, or of a committee or governing body of the association, under its relevant objects, but only to the extent that the proceedings relate to a decision or adjudication made in Australia about:

(i) a member or members of the association, or

(ii) a person subject by contract or otherwise by law to control by the association, or

(k) any proceedings of a public meeting (with or without restriction on the people attending) of shareholders of a public company under the Corporations Act 2001 of the Commonwealth held anywhere in Australia, or

(l) any proceedings of a public meeting (with or without restriction on the people attending) held anywhere in Australia if the proceedings relate to a matter of public interest, including the advocacy or candidature of a person for public office, or

(m) any proceedings of an ombudsman of any country if the proceedings relate to a report of the ombudsman, or

(n) any proceedings in public of a law reform body of any country, or

(o) any other proceedings conducted by, or proceedings of, a person, body or organisation of another Australian jurisdiction that are treated in that jurisdiction as proceedings of public concern under a provision of a law of the jurisdiction corresponding to this section, or

(p) any proceedings of a kind specified in Schedule 3.

(5) In this section:“law reform body” of a country means a body (however described and whether or not permanent or full-time) established by law to conduct inquiries into, and to make recommendations on, reforming the laws of that country.“learned society” means a body, wherever formed:

(a) the objects of which include the advancement of any art, science or religion or the advancement of learning in any field, and

(b) authorised by its constitution:

(i) to exercise control over, or adjudicate on, matters connected with those objects, and

(ii) to make findings or decisions having effect, by law or custom, in any part of Australia.

“ombudsman” of a country means a person (however described and whether or not permanent or full-time) authorised by law to investigate complaints about the actions or other conduct of any public officials or public bodies of that country.“relevant objects” of a learned society, sport or recreation association or trade association means:

(a) in relation to a learned society–objects of the kind referred to in paragraph (a) of the definition of “learned society” in this subsection, or

(b) in relation to a sport or recreation association–objects of the kind referred to in paragraph (a) of the definition of “sport or recreation association” in this subsection, or

(c) in relation to a trade association–objects of the kind referred to in paragraph (a) of the definition of “trade association” in this subsection.

“sport or recreation association” means a body, wherever formed:

(a) the objects of which include the promotion of any game, sport, or pastime to the playing of which or exercise of which the public is admitted as spectators or otherwise and the promotion or protection of the interests of people connected with the game, sport, or pastime, and

(b) authorised by its constitution:

(i) to exercise control over, or adjudicate on, matters connected with the game, sport, or pastime, and

(ii) to make findings or decisions having effect, by law or custom, in any part of Australia.

“trade association” means a body, wherever formed:

(a) the objects of which include the promotion of any calling, that is to say, a trade, business, industry or profession and the promotion or protection of the interests of people engaged in any calling, and

(b) authorised by its constitution:

(i) to exercise control over, or adjudicate on, matters connected with a calling or the conduct of people engaged in the calling, and

(ii) to make findings or decisions having effect, by law or custom, in any part of Australia.

• Fair and Accurate report of parliament and court.
• g. Assume a boring enquiry. No one reports on it. Journalists do not report on any aspect of the enquiry except the embarrassing evidence given by a particular person. Even though privileged it may be defeated by malice.
• A document is not protected unless relied upon in court.

 Section 30 Defence of qualified privilege for provision of certain information

(1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the “recipient”) if the defendant proves that:

(a) the recipient has an interest or apparent interest in having information on some subject, and

(b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and

(c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.

(2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.

(3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account:

(a) the extent to which the matter published is of public interest, and

(b) the extent to which the matter published relates to the performance of the public functions or activities of the person, and

(c) the seriousness of any defamatory imputation carried by the matter published, and

(d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and

(e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and

(f) the nature of the business environment in which the defendant operates, and

(g) the sources of the information in the matter published and the integrity of those sources, and

(h) whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and

(i) any other steps taken to verify the information in the matter published, and

(j) any other circumstances that the court considers relevant.

(4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.

(5) However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward.

General Requirements:

• an occasion of qualified privilege is determined by reference to all of the circumstances in which the communication is published, including the identification of a duty or interest in the publisher to communicate with respect to that subject matter, and the identification of a reciprocal interest in the recipient in receiving a communication with respect to that subject matter;
• the content of the communication must be relevant, germane, or sufficiently connected to that occasion or subject matter;
• determination whether, notwithstanding that there is an occasion of qualified privilege, and that the communication is sufficiently relevant or germane to that occasion, the occasion was misused, or used for an ulterior or extraneous purpose, such as express malice: Megna v Marshall
• In Mowlds v Fergusson (1939) 40 SR (NSW) 311, Jordan CJ said: “A privileged occasion comes into existence whenever something occurs which creates in one person an interest or duty, legal, social, or moral, to communicate information to another to serve some particular purpose, and creates also in the other a corresponding interest or duty to receive the communication for that purpose. When such an occasion arises, any person having an interest or duty to make a communication to serve its purpose may make it to any person entitled to receive it; and if he restricts himself to a communication which is capable of serving the purpose of the occasion and is made with no other object than that of serving that purpose, he incurs no liability for libel or slander to any person of whom his communication may be in fact defamatory.” (p 318, cited with approval by McHugh J in Stephens v West Australian Newspapers Ltd [1994] HCA 45; 182 CLR 211; italics added)

Council Meetings (and arguably board meetings)

• Ordinarily speaking, discussion during the course of a Council meeting would attract privilege.
• The occasion confers a privilege upon the members of the Council, so that they may freely, openly and honestly exchange information and express views on matters relevant to Council business. For that purpose, the occasion is privileged. But the privilege conferred on specific communications is limited to those that are relevant to or have the necessary connection with Council business.
• If a defamatory statement is made that is not relevant to the business of the Council, while the occasion may be privileged, the specific communication is not: Megna v Marshall

Board and Council Meetings

• In Horrocks v Lowe, a case that, involved local government, Lord Diplock said:
• “… what is said by members of a local council at meetings of the council or of any of its committees is spoken on a privileged occasion. The reason for the privilege is that those who represent the local government electors should be able to speak freely and frankly, boldly and bluntly, on any matter which they believe affects the interests or welfare of the inhabitants. They may be swayed by strong political prejudice, they may be obstinate and pig-headed, stupid and obtuse; but they were chosen by the electors to speak their minds on matters of local concern and so long as they do so honestly they run no risk of liability for defamation of those who are the subjects of their criticism.”
• Although not all of the italicised words are directed specifically to the nature of the language used, it may be inferred that “bold and blunt” speech, “obstinacy” and “pigheadedness”, “stupidity” and “obtuseness” would give rise to strong language. Nevertheless, as I read his Lordship, the communication is privileged unless actuated by express malice.
• The effect of these decisions, it seems to me, is that, in the United Kingdom, provided a defamatory communication is relevant to the occasion of qualified privilege, then, no matter how gross or inflammatory its terms, it remains privileged, unless the plaintiff establishes that the purpose of the defendant in publishing it was a malicious one

Anonymous Council Circulars partially protected

• In general terms, what was published by Mr Marshall was published because of his interest, as a Councillor himself, in the affairs of the Council, and was published by him to electors, ratepayers and residents of the municipality, and, (probably) occasionally to others (such as employees of businesses) who used Council facilities, and were affected to some degree, by the manner in which the Council was administered. If the content of the circulars were uniformly the affairs and administration of the Council, it would be a relatively short and easy step to conclude that the occasion of each publication was one of qualified privilege. But that the general purpose of the circulars, as proclaimed in the heading and slogan, was to deal with affairs and administration of the Council, does not necessarily mean that every item in every circular, when examined, contained information about Council business. The mere fact that the circulars bore the banner heading, and the slogan, that they did, does not mean that the entirety of their contents related to those matters. Each item must be considered individually: Megna v Marshall

• At the same town hall meeting where Ian Cohen MP said that developers were “bullies” and “thugs” Cohen also claimed qualified privilege.
• The issue is one of reciprocity. Generally speaking, the wider the publication, the more difficult it will be for the defendant to establish the defence of qualified privilege. This is because it will be more difficult to establish the requisite reciprocity of interest in all of the recipients: Bennette v Cohen

Letters to Members of the Ukrainian Association

• Goyan v Motyka Ukranian Association: There, the subject matter of the proceedings was a series of letters written by the defendants in the English and Ukrainian languages, and published generally to members of a Ukrainian Association, and a book in which many of the letters were reproduced. In respect of each, the defence of qualified privilege failed.
• The fundamental reason for the failure of the defence, in relation to each publication, was that it was not published on an occasion of qualified privilege. This, in turn, depended upon the finding that each was published to a person or persons not members of the Association, and thus to a person or persons who did not have the requisite reciprocal interest. The class was far too wide to satisfy the requirement of reciprocity in the present case.
• Furthermore, the language of the matters complained of was so excessive, vituperative, irrational and spiteful as to warrant the conclusion that the protection of the privilege should not be afforded to the subject publications.

Letter to the Prime Minister and Government and Serbian Newspaper

• Assaf v Skalkos involved the publication to the Prime Minister (with copies to a government instrumentality and three of its employees) of a letter which was replicated (except for one sentence) in the Serbian language in a newspaper circulating in the Serbian community. Put generally, the letter concerned government advertising and provision of information to the ethnic community. It suggested abuses and exploitation.
• The court found, in respect of each publication that an occasion of qualified privilege existed; but that the publication did not fall within that occasion.
• In other words his Honour held that, while the occasions were privileged, the communications were not. In reaching this conclusion, he took into account that one imputation was “irrational”; that the publication was “a splenetic and false attack upon the commercial integrity of the plaintiffs”; that “the imputations’ irrationality and inaccuracy was incapable of serving the purpose of the [privileged] occasion”; that the publication was “not relevant or pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest”; that the publication was “an abuse of the [privileged] occasion”, and was “beyond what was germane and reasonably appropriate to the occasion”.

Election Campaigns

• I see no reason to draw a distinction between statements made during the currency of an election campaign, and statements made concerning the discharge of functions of elected representatives. The mere fact that the publications were not made in the context of an election has, to my mind, little (if any) materiality. Of course, as a matter of reality, the degree of scrutiny, and the level of comment, can be expected to intensify during an election campaign; but there is no difference in principle between the comment upon the performance of an elected representative during the tenure of office, and comment on the same person whilst a candidate: Roberts v Bass

Criminal conduct

• An employee, for example, may have a duty to pass onto a superior an allegation of criminal conduct on the part of another employee even though the first employee has reason to believe that the allegation is false.
• Holmes à Court v Papaconstuntinos; where Mr Holmes a Court who wrote a letter about a director of the South Sydney Rabbitoh’s NRL team to the CFMEU alleging improper conduct by Mr Papaconstuntinos an employee of CFMEU
• Bechara v Bonacorso; where Mr Bonacorso reported his suspicions about suspected criminal offences perpetrated by a Canada Bay based property developer, Mr Bechara, to the police.

Qualified Privilege rejected for malice (hatered)

• Dillon v Cush; Dillon v Boland. In that matter, the District Court found in favour of the two plaintiffs, Amanda Cush and Leslie Boland, against Meryl Dillon in relation to a statement published by the latter alleging that it was “common knowledge … that Les and Amanda are having an affair”. Having established that it was common ground that the plaintiffs were not having an affair, and that the defendant did not believe they were having an affair, Elkaim DCJ rejected a defence of qualified privilege at common law, having found that the defendant acted with malice in publishing the defamatory statement

Constitutional Defence: Expanded qualified privilege

• Since Lange case following test applies.
• If a political or government matter is being discussed then a publication will be protected by Qualified privilege provided that it is reasonable in circumstances.

The test is:

1. Mustn’t know its false
2. Mustn’t have reckless disregard for truth
3. There must be a reasonable belief that the statement could be true
4. Must make reasonable enquiries to find out if it is true and
5. Must go to the person and get a response
6. Only applies to politicians not judges etc: Popovic

Section 31 Defences of honest opinion

(1) It is a defence to the publication of defamatory matter if the defendant proves that:

(a) the matter was an expression of opinion of the defendant rather than a statement of fact, and

(b) the opinion related to a matter of public interest, and

(c) the opinion is based on proper material.

(2) It is a defence to the publication of defamatory matter if the defendant proves that:

(a) the matter was an expression of opinion of an employee or agent of the defendant rather than a statement of fact, and

(b) the opinion related to a matter of public interest, and

(c) the opinion is based on proper material.

(3) It is a defence to the publication of defamatory matter if the defendant proves that:

(a) the matter was an expression of opinion of a person (the “commentator”), other than the defendant or an employee or agent of the defendant, rather than a statement of fact, and

(b) the opinion related to a matter of public interest, and

(c) the opinion is based on proper material.

(4) A defence established under this section is defeated if, and only if, the plaintiff proves that:

(a) in the case of a defence under subsection (1)–the opinion was not honestly held by the defendant at the time the defamatory matter was published, or

(b) in the case of a defence under subsection (2)–the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published, or

(c) in the case of a defence under subsection (3)–the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published.

(5) For the purposes of this section, an opinion is based on “proper material” if it is based on material that:

(a) is substantially true, or

(b) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law), or

(c) was published on an occasion that attracted the protection of a defence under this section or section 28 or 29.

(6) An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material.

• This defence covers opinions on matters of public interest such as political commentary, restaurant, art and theatre reviews, literary criticism and sport commentary

Requirements:

1. Must be a comment or opinion and not a statement of fact
2. Facts in the statement upon which the opinion is based must be true
3. Must be a matter of public interest
4. No malice

• Discerning fact and opinion is difficult. Comment and facts are often merged.
• To say food was overcooked is different from the food tasted as though it was overcooked. Commentators need to be careful when commenting on a fact, particularly if a fact is not correct. In future take a witness to confirm what you are writing about.
• Malice defeats this defence or if opinion not honestly held.
• The law protects individuals from liability in situations where the publication was a matter of public interest which was an expression of opinion rather than statement of fact, and was based on proper material. Therefore, the law aims to protect freedom of expression when a person is merely communicating their opinion which may not be entirely but is substantially true, or is protected by the defence of absolute privilege or defences under section 28 and 29.

Section 32 Defence of innocent dissemination

(1) It is a defence to the publication of defamatory matter if the defendant proves that:

(a) the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor, and

(b) the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory, and

(c) the defendant’s lack of knowledge was not due to any negligence on the part of the defendant.

(2) For the purposes of subsection (1), a person is a “subordinate distributor” of defamatory matter if the person:

(a) was not the first or primary distributor of the matter, and

(b) was not the author or originator of the matter, and

(c) did not have any capacity to exercise editorial control over the content of the matter (or over the publication of the matter) before it was first published.

(3) Without limiting subsection (2) (a), a person is not the first or primary distributor of matter merely because the person was involved in the publication of the matter in the capacity of:

(a) a bookseller, newsagent or news-vendor, or

(b) a librarian, or

(c) a wholesaler or retailer of the matter, or

(d) a provider of postal or similar services by means of which the matter is published, or

(e) a broadcaster of a live programme (whether on television, radio or otherwise) containing the matter in circumstances in which the broadcaster has no effective control over the person who makes the statements that comprise the matter, or

(f) a provider of services consisting of:

(i) the processing, copying, distributing or selling of any electronic medium in or on which the matter is recorded, or

(ii) the operation of, or the provision of any equipment, system or service, by means of which the matter is retrieved, copied, distributed or made available in electronic form, or

(g) an operator of, or a provider of access to, a communications system by means of which the matter is transmitted, or made available, by another person over whom the operator or provider has no effective control, or

(h) a person who, on the instructions or at the direction of another person, prints or produces, reprints or reproduces or distributes the matter for or on behalf of that other person.

• Newsagents, booksellers, libraries, retailers broadcasters etc.
• The question is whether a subordinate publisher Known or ought reasonable have known that material was defamatory
• Note grapevine effect may make primary defamer responsible for republication (Sims v Wran)
• ISP may be innocent until notified: UK Cases and Silberberg v The Builder’s Collective of Australia Inc [2007] FCA 1512)

Section 33 Defence of triviality

It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.

• A person may have a defence to a defamation claim where the plaintiff is unlikely to suffer any harm and depends on circumstances of the defamation, publication etc.

Offer of Amends or Apology

• An Offer of Amends is intended to encourage a quick response in order to avoid litigation
• A reasonable offer of amends may be a defence to defamation
• An apology must be published on a similar page in a similar font etc.
• It is not an apology to repeat the defamation such as “I am sorry I said he is a pig”

Section 13 Defamation Act 2005 – Publisher may make offer to make amends

(1) The publisher may make an offer to make amends to the aggrieved person.

(2) The offer may be:

(a) in relation to the matter in question generally, or

(b) limited to any particular defamatory imputations that the publisher accepts that the matter in question carries.

(3) If 2 or more persons published the matter in question, an offer to make amends by one or more of them does not affect the liability of the other or others.

(4) An offer to make amends is taken to have been made without prejudice, unless the offer provides otherwise.

Section 14 When offer to make amends may be made

(1) An offer to make amends cannot be made if:

(a) 28 days have elapsed since the publisher was given a concerns notice by the aggrieved person, or

(b) a defence has been served in an action brought by the aggrieved person against the publisher in relation to the matter in question.

Remedies

Injunctions

• Courts are reluctant to restrict the right to free speech. Extreme and clear cases only (compare Hatfield v Channel 9 with Solicitors from Hell)
• Damages are normally an adequate remedy
• All the defendant normally needs to do to resist an injunction is to file an affidavit saying they have a good defence. The plaintiff needs to have exceptional reasons to get an injunction thereafter.

Damages

• Must be a rational and appropriate relationship between the harm and damage s 34
• The highest award of damages pre Defamation Act was 1.3 million plus legal costs. Now, non economic loss is capped at $250,000. This includes damage to reputation, feelings and health s35
• Economic Loss means loss of contracts or employment or business
• Aggravated damages are not capped where the harm is aggravated by the conduct of the defendant
• But no exemplary or punitive damages are awarded.

DEFAMATION ACT 2005

Section 34 Damages to bear rational relationship to harm

 In determining the amount of damages to be awarded in any defamation

proceedings, the court is to ensure that there is an appropriate and rational

relationship between the harm sustained by the plaintiff and the amount of

damages awarded.

Section 35 Damages for non-economic loss limited

     (1) Unless the court orders otherwise under subsection (2), the

     maximum amount of damages for non-economic loss that may be awarded

     in defamation proceedings is $250,000 or any other amount adjusted in

     accordance with this section from time to time (the

     >”maximum damages amount”) that is applicable at the time damages are

     awarded.

     (2) A court may order a defendant in defamation proceedings to pay

     damages for non-economic loss that exceed the maximum damages amount

     applicable at the time the order is made if, and only if, the court

     is satisfied that the circumstances of the publication of the

     defamatory matter to which the proceedings relate are such as to

     warrant an award of aggravated damages.

     (3) The Minister is, on or before 1 July 2006 and on or before 1 July

     in each succeeding year, to declare, by order published in the

     Gazette, the amount that is to apply, as from the date specified in

     the order, for the purposes of subsection (1).

          For orders under this subsection, see Gazettes No 84 of

          30.6.2006, p 5043 (amount declared: $259,500); No 80 of

          15.6.2007, p 3793 (amount declared: $267,500); No 72 of

          20.6.2008, p 5482 (amount declared $280,500); No 90 of

          19.6.2009, p 3137 (amount declared: $294,500); No 79 of

          18.6.2010, p 2452 (amount declared: $311,000); No 62 of

          24.6.2011, p 4588 (amount declared: $324,000); No 60 of

          8.6.2012, p 2369 (amount declared: $339,000); No 65 of

          31.5.2013, p 2307 ($355,500) and No 52 of 26.6.2015, p 1928

          (amount declared: $376,500).

     (4) The amount declared is to be the amount applicable under

     subsection (1) (or that amount as last adjusted under this section)

     adjusted by the percentage change in the amount estimated by the

     Australian Statistician of the average weekly total earnings of full-

     time adults in Australia over the 4 quarters preceding the date of

     the declaration for which those estimates are, at that date,

     available.

     (5) An amount declared for the time being under this section applies

     to the exclusion of the amount of $250,000 or an amount previously

     adjusted under this section.

     (6) If the Australian Statistician fails or ceases to estimate the

     amount referred to in subsection (4), the amount declared is to be

     determined in accordance with the regulations.

     (7) In adjusting an amount to be declared for the purposes of

     subsection (1), the amount determined in accordance with subsection

     (4) is to be rounded to the nearest $500.

     (8) A declaration made or published in the Gazette after 1 July in a

     year and specifying a date that is before the date it is made or

     published as the date from which the amount declared by the order is

     to apply has effect as from that specified date.

Section 36 State of mind of defendant generally not relevant to awarding damages

In awarding damages for defamation, the court is to disregard the malice or

other state of mind of the defendant at the time of the publication of the

defamatory matter to which the proceedings relate or at any other time except

to the extent that the malice or other state of mind affects the harm sustained

by the plaintiff.

Section 37 Exemplary or punitive damages cannot be awarded

A plaintiff cannot be awarded exemplary or punitive damages for defamation.

Section 38 Factors in mitigation of damages

     (1) Evidence is admissible on behalf of the defendant, in mitigation

     of damages for the publication of defamatory matter, that:

          (a) the defendant has made an apology to the plaintiff

          about the publication of the defamatory matter, or

          (b) the defendant has published a correction of the

          defamatory matter, or

          (c) the plaintiff has already recovered damages for

          defamation in relation to any other publication of matter

          having the same meaning or effect as the defamatory matter,

          or

          (d) the plaintiff has brought proceedings for damages for

          defamation in relation to any other publication of matter

          having the same meaning or effect as the defamatory matter,

          or

          (e) the plaintiff has received or agreed to receive

          compensation for defamation in relation to any other

          publication of matter having the same meaning or effect as

          the defamatory matter.

     (2) Nothing in subsection (1) operates to limit the matters that can

     be taken into account by a court in mitigation of damages.

Section 39 Damages for multiple causes of action may be assessed as single sum

If the court in defamation proceedings finds for the plaintiff as to more than

one cause of action, the judicial officer may assess damages in a single sum.