The defence of publication of public documents is codified under section 28 of the Defamation Act 2005 (‘the Defamation Act’) and is intended to provide an absolute defence to a claim for defamation with respect to the publication of certain public documents. ‘Public documents’ for the purposes of the Defamation Act refer mainly to reports, papers, record of votes, debates, other proceedings, judgements, orders, or any other documents that concern a parliamentary body, a court or tribunal, or a governing body[1]. Pursuant to section 28, such documents are inherently protected from claims for defamation, even where the documents may contain defamatory material.
How does this defence work?
In order for the defence of publication of public documents to apply, the defendant is required to prove that the defamatory imputations complained of were contained in “a public document or a fair copy of a public document or a fair summary of, or a fair extract from, a public document”[2]. Where it is established that the publication complained of was, indeed, a public document for the purposes of section 28 of the Defamation Act, the defence may only be defeated if the plaintiff is able to prove that the defamatory imputations were not honestly published for the purpose of the public or to contribute to the advancement of education in the documents[3].
In the case of Cummings v Fairfax Digital Australia and New Zealand Pty Ltd[4], the appellants sued the respondents in relation to a number of articles and a poster published by the respondents that reported on a court proceeding relating to a particular racehorse trainer, including references to negative views on the trainer’s capacity as a racehorse trainer. The respondents relied on the defence of public documents by stating that the publications were of documents otherwise open to the public and was therefore considered fair reports of the proceedings. The court held the while the articles were protected under the defence of public documents, the poster was not protected because it did not refer to its source for making such statements.
Contact Harris Defamation Lawyers
If you have been accused of publishing a defamatory comment published in a public document that relate to or concern a particular proceeding or governing body, you may be protected under the defence of publication of public documents. Contact Harris Defamation Lawyers today for a fixed-fee consultation to discuss your legal rights and options.
