There are a number of defences available in Australian law a defendant who has been accused of publishing defamatory material may be able to rely upon in order to defend parts or all of a defamation claim brough against them. The concept of uniform application of defences to defamation claims across all Australian states was introduced in Australian defamation law through the codification of the national uniform defamation laws in 2005. A list of defences and their intended application in law can now be found under Division 2 of the Defamation Act 2005 (‘the Defamation Act’).
This article briefly outlines the main defences available to defendants under Australian defamation law, the purpose and scope of the defences incorporated in legislation as outlined in section 24 of the Defamation Act, and some common components that the courts will consider in assessing the merits of a defamation claim.
Overview of Defences in Australian Defamation Law
Sections 24 to 33 of the Defamation Act respectively deals with defences to claims for defamation in Australia. Whilst it is not a comprehensive list of each defence available to defendants under Australian defamation law, the majority of the most commonly applicable defences to defamation claim have been incorporated into Australian defamation law under the Defamation Act, which lists the following defences:
- Defence of Justification (or Truth);
- Defence of Contextual Truth;
- Defence of Absolute Privilege;
- Defence of Qualified Privilege;
- Defence for Publications of Public Documents;
- Defences of Fair Report of Proceedings of Public Concern;
- Defence of Qualified Privilege for Provision of Certain Information.
- Defences of Honest Opinion;
- Defence of Innocent Dissemination; and
- Defence of Triviality.
Additional common law defences that are not expressly listed under sections 24 to 33 of the Defamation Act include, but are not limited to:
- The Defence of Partial Justification;
- The Defence of Fair Comment; and
- ‘Polly-Peck’ and ‘Hore-Lacy’ Defences.
For more information on defences, please see our dedicated articles on individual defences here.
Scope and Application of Statutory and Common Law Defences in Defamation
Defences that are recognised in Australian defamation law can be applied simultaneously to defend a defamation claim, regardless of whether the defences are common law or statutory defences.
Subsection 24 of the Defamation Act states as follows:22
- “A defence under this division is additional to any other defence or exclusion of liability available to the defendant apart from this Act (including under the general law) and does not of itself vitiate, limit or abrogate any other defence or exclusion of liability.”
In the case of Noone v Brown[1], the plaintiff was a director of nursing at a retirement village. The defendant made a number of publications on Facebook stating that the plaintiff drank alcohol whilst on duty, that she had been fired from her previous job due to drinking whilst on duty, and that she had been fired from her current job for similar reasons. At trial, the defendant relied on the defence of justification to defend the publications made. The court found that while some comments made about the plaintiff were in fact true, the defendant had been unable to prove that all the imputations deriving from the publications were substantially true. Accordingly, the defendant was unable to rely on the statutory defence of justification. However, the defendant was able to rely on the common law defence of partial justification with respect to the imputations that were found to be true in mitigation of the damages awarded to the plaintiff.
Matters of Consideration in Defamation Claims
In determining whether or not to uphold a defamation claim or to award damages to a plaintiff seeking relief for defamation, there are a number of things that the court may take into consideration. Three of the main components that will generally form the the basis of the court’s assessment include:
- The Natural and Ordinary Meaning Test (the Reasonable Person Test);
- The True Innuendo Test; and
- Malice.
The Natural and Ordinary Meaning Test
In order to determine whether words contained in a particular publication convey defamatory imputation, the court will consider the natural and ordinary meaning of the words published. This can be referred to as the ‘Natural and Ordinary Meaning Test’ or the “Reasonable Person Test’.
The Natural and Ordinary Meaning Test is an objective test that aims to determine whether an ordinary and reasonable person would find the publication defamatory. The are two main components to carrying out the test:
- Determining the significance of words in the publication; and
- Determining whether the words contained in the publications are, in fact, defamatory[2].
In defamation claims, what is considered defamatory in the eyes of ‘an ordinary and reasonable reader’ will be determined by focusing on the publication itself and excludes any evidence given at trial[3].
The court in Asbog Veterinary Services Pty Ltd & Anor v Barlow[4]defined what is considered ‘an ordinary and reasonable reader’ as follows:
“The ordinary, reasonable reader is a person of fair, average intelligence who approaches the interpretation of the publication in a fair and objective manner, not overly suspicious, not ‘avid for scandal’, not searching for forced meanings and not naïve. This person can, and does read between the lines, in the light of his general knowledge and experience of worldly affairs…takes into account the forum in which the statements were published. The mode or manner of publication can affect what imputation is conveyed.”
In the case of John Fairfax Pty Ltd v Rivkin[5], Lord Reid described what is considered an ‘ordinary man’ as follows:
‘The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs’.
Whether the Reasonable Person Test should be the main test used in practice to determine whether or not a particular material or publication is considered defamatory remains a widely debated topic in Australian defamation law. The test has been heavily criticised, and it is debated whether its use should aptly be discontinued. A number of critics lobbying for the test’s discontinuation have further indicated they consider judges ought to determine an outcome at trial for themselves rather than relying on the concept of what an ‘ordinary person’ might consider reasonable [6].
The True Innuendo Test
The True Innuendo Test may be used where the natural and ordinary meaning of the words contained in a particular publication is found not to be defamatory. The True Innuendo Test considers the true or actual meaning, or ‘true innuendo’, behind the publication with its reference to special facts or circumstances that the plaintiff has particular knowledge of[7].
In the UK case of Lewis v Daily Telegraph Ltd[8]the plaintiff claimed that a publication published by the defendant inferred that the plaintiff was guilty of fraud. The defendant, a newspaper publishing company, argued that the publication did not specifically state that the plaintiff was guilty, but rather that the plaintiff was being inquired for suspicions of fraud, which was true in fact.
In his decision, Lord Devlin illustrated the concept of true innuendo as follows:
“To say of a man that he was seen to enter a named house would contain derogatory implication for anyone who knew that that house was a brothel but not for anyone who did not.”
The court held that the words, as stated, were incapable of conveying the imputations alleged by the plaintiff, and the defamation claim ultimately failed.
Malice in Defamation Matters
Subsection 24(2) of the Defamation Act states as follows[9]:
- “If a defence under this division to the publication of defamatory matter may be defeated by proof that the publication was actuated by malice, the general law applies in defamation proceedings in which the defence is raised to determine whether a particular publication of matter was actuated by malice.”
In essence, subsection 24(2) refers to an exception to the application of otherwise pertinent defences in defence of a claim for defamation where the imputations arising from defamatory publications are proven to have been actuated by malice. The onus is on the plaintiff to establish that the defendant acted with malice in publishing the publications complained of. Where malice can be established, the application of any defence claimed by the defendant will fail, irrespective of whether or not the defence may otherwise apply.
In Noone v Brown[10], the court noted the following matters as relevant indications in establishing the presence of malice:
- was aware that their statements were false[11];
- The defendant did not have genuine belief in their own words[12];
- The defendant was intentionally avoiding facts, remained unaware, or otherwise ought to have known that their statements were false or otherwise inaccurate (wilful blindness)[13];
- The statements were disproportionate to the facts[14];
- the statements were so extreme that the defendant could not possibly have believed them to be true and failed to inquire further[15]; and
- the defendant’s conduct, awareness, and actions otherwise indicate malice.
In assessing the factors outlined by the court in Noone, it is evident the courts will rely on circumstantial evidence in determining whether malice can be established. The onus is not on the defendant to disprove that the publication was published without malice, but rather on the plaintiff to prove the defendant’s improper motive in publishing the defamatory statements complained of[16].
Malice is commonly referred to as a “desire to harm someone” or a “wrongful intention”. Whilst the term ‘malice’ in and of itself encompasses a similar primary meaning it law, the legal interpretation of malice with respect to its application in defamation matters is far more complex.
In a claim for defamation, malice only becomes relevant when the publication of defamatory matter is alleged to have arisen out of ill will or spite towards the plaintiff by the defendant[17]. However, it malice does not necessarily need to be directed specifically at the plaintiff[18]; even where malice is directed towards another person, proof of malice may still defeat a defence to a defamation claim.[23]
Malice speaks to the defendant’s state of mind at the time of publication. Whether a publication was fuelled by malice will therefore depend on whether a publication was specifically made for an improper or foreign purpose or without genuine or reasonable belief in the truth of the publication[19].
Malice at common law requires much speculation and consideration of the specific circumstances of each individual case. Mere presence of malice will not suffice to defeat a defence to a claim for defamation[20]; rather, it needs to have been an operative part in creating the publication[21].
Contact Harris Defamation Lawyers
If you are a defendant in a defamation claim, there are a number of defences that may be available to you in defence of the claim against you, both under statute and in common law.
If you are seeking to defend a claim for defamation brought against you, or you are seeking advice on whether a particular defence might apply to your case, contact Harris Defamation Lawyers today for a fixed-fee consultation to discuss your legal rights and options.
