The defence of contextual truth

A publication often conveys more than one defamatory meaning. A plaintiff is entitled to choose which meanings to sue on, and may choose the ones the publisher will find hardest to prove while leaving out the ones that are plainly true. The defence of contextual truth exists to deal with that tactic. It allows a publisher to answer the whole claim by proving the truth of the serious parts of the publication, even if a lesser imputation cannot be proved.

The defence was substantially rewritten with effect from 1 July 2021 in every jurisdiction except Western Australia. This article explains the current s 26 of the Defamation Act 2005, the problem with the original wording that the amendment fixed, how courts carry out the assessment of further harm, and how the defence is pleaded.

What the defence says

Section 26(1) provides that it is a defence to the publication of defamatory matter if the defendant proves two things. The first is that the matter carried one or more imputations that are substantially true, which the Act calls contextual imputations. The second is that any defamatory imputations of which the plaintiff complains that are not contextual imputations and are also carried by the matter do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.¹ Section 26(2) adds that the contextual imputations on which the defendant may rely include imputations of which the plaintiff complains.¹

“Substantially true” has the same meaning as in the justification defence: true in substance or not materially different from the truth.²

Put simply, the defence has two steps. First, the defendant identifies one or more imputations conveyed by the publication and proves they are substantially true. Second, the court asks whether, given the truth of those imputations, the imputations the plaintiff relies on and the defendant cannot prove do any further harm to the plaintiff’s reputation. If they do not, the defence succeeds and the claim fails entirely.

Why the defence exists

The Queensland Court of Appeal explained the rationale in Nationwide News Pty Ltd v Weatherup. The defence addresses a defect in the common law. It denies a plaintiff damages where the plaintiff has selected, and proved, a less serious imputation than the more serious imputation which the defendant selects and proves to be substantially true, because in that situation the defendant’s proof of the more serious imputation may show that the plaintiff’s reputation was not further harmed by the lesser, unproven imputation.³

A simple illustration: a publication conveys both that a person embezzled money from their employer and that they were often late for work. If the plaintiff sues only on the lateness imputation, and the publisher proves the embezzlement, the court may conclude that the reputation of a proven embezzler is not further harmed by an unproven suggestion of poor timekeeping.

The problem with the original wording

As enacted in 2005, s 26 required the contextual imputations to be carried “in addition to” the defamatory imputations of which the plaintiff complained. In Besser v Kermode, decided under that original wording, the New South Wales Court of Appeal held that it meant what it said: a defendant could not rely on the plaintiff’s own imputations as contextual imputations, and could rely only on imputations that were additional to and differed in substance from those the plaintiff pleaded.⁴ The court recognised that the decision allowed a plaintiff to defeat a contextual truth defence simply by adopting the defendant’s contextual imputations as imputations of which the plaintiff complained, but held that the statutory language could not be stretched to avoid that outcome.⁴

The practical consequence was that a plaintiff could sue on every imputation the publication conveyed, including the true ones, and thereby prevent the defendant from weighing the truth of the serious imputations against the unproven lesser ones. The defendant could still prove the true imputations under s 25 and rely on them to reduce damages, but could not use them to defeat the claim.

The 2021 amendment

The Model Defamation Amendment Provisions 2020 rewrote s 26 to remove the restriction identified in Besser v Kermode. The words “in addition to” were removed and s 26(2) was inserted to make clear that the contextual imputations on which the defendant may rely include imputations of which the plaintiff complains.¹ The amended provision commenced on 1 July 2021 in New South Wales, Victoria, Queensland, South Australia and the Australian Capital Territory, on 12 November 2021 in Tasmania, and on 11 August 2025 in the Northern Territory.

The Federal Court described the effect of the change in Al Muderis v Nine Network Australia Pty Ltd. Abraham J observed that since the amendment it is no longer necessary that a respondent’s contextual imputations be different in substance from an applicant’s pleaded imputations, and that a respondent may now rely on any imputations carried by a publication, whether the same as, permissible variants of, carrying a common sting with, or entirely different in substance from, the imputations of which the applicant complains.⁵

The amendment does not change the second step. The defendant must still prove that the plaintiff’s unproven imputations do no further harm because of the substantial truth of the contextual imputations.

How courts assess further harm

The second step is not a matter of counting imputations or comparing their wording. The courts have consistently held that the focus is on the facts, matters and circumstances that establish the substantial truth of the contextual imputations, rather than on the terms of the imputations themselves.³ The Full Court of the Federal Court endorsed that approach in Seven Network (Operations) Ltd v Greiss, rejecting an argument that the trial judge had erred by drawing on cases decided under the earlier New South Wales legislation.⁶ Abraham J applied the same approach in Al Muderis.⁵

The Queensland Court of Appeal in Weatherup described the task as considering the effect of the defamatory publication on the plaintiff’s reputation and deciding whether the imputations the plaintiff has proved did not cause further harm because of the truth of the contextual imputations. The defence fails if the plaintiff’s imputations would still have some effect on the plaintiff’s reputation notwithstanding the truth of the defendant’s contextual imputations.³ The court cautioned that expressions such as “swamped” or “overwhelmed” are shorthand only, but accepted that in practice the defendant must plead and prove contextual imputations that are clearly more serious than the plaintiff’s.³ The court also rejected an artificial approach of imagining two separate publications, one conveying only the plaintiff’s imputations and the other only the contextual imputations; the assessment is holistic.³

In Roberts-Smith v Fairfax Media Publications Pty Ltd (No 41), Besanko J found most of the imputations substantially true and then turned to contextual truth for the remainder. Applying the same focus on the facts, matters and circumstances, his Honour rejected the argument that the unproven imputations damaged a different sector of the applicant’s reputation, and held in any event that the conduct proved was so serious that the applicant had no reputation capable of being further harmed by the unproven imputations.⁷ That is the strongest form of the defence: the proven misconduct is so serious that no further harm is possible. The Full Court dismissed the appeal and the High Court refused special leave.⁸

Pleading the defence

A defendant who relies on contextual truth must plead the specific contextual imputations and give particulars of the facts relied on to prove their substantial truth, in the same way as for a justification defence. Each contextual imputation must be one the publication is reasonably capable of conveying, and courts will strike out contextual imputations that are not capable of arising or that are not properly particularised.

Since the 2021 amendment, the defence is commonly pleaded in the alternative to justification: the defendant pleads that all the plaintiff’s imputations are substantially true under s 25 and, if the court finds that only some of them are, relies on those proved as contextual imputations under s 26. Al Muderis is an example. The respondents had pleaded justification, but that defence could succeed only if every imputation was proved, and it had not been pleaded to four of the imputations at all. In closing submissions the respondents therefore put their truth case as one of contextual truth.⁵ Where a jury is used, the jury decides whether the defence is established.⁹

A defendant who fails on both s 25 and s 26 may still rely on the evidence in mitigation of damages. Evidence properly before the court on those defences may be taken into account for that purpose, provided it relates to the relevant sector of the plaintiff’s reputation.¹⁰

A worked example

Suppose a community newsletter reports that a local building contractor took deposits from three customers and never started the work, that the contractor’s licence had been suspended, and that the contractor had been rude to a customer who complained. The contractor sues only on the imputation of rudeness, which the newsletter cannot prove because the customer will not give evidence.

Under the original s 26, the newsletter could plead the deposit and licence imputations as contextual imputations because they were additional to the imputation the plaintiff relied on. The contractor could respond by amending to sue on all three imputations, after which the newsletter could prove the first two under s 25 but could not use them to defeat the claim on the third.

Under the amended s 26, that tactic no longer works. The newsletter can rely on the deposit and licence imputations as contextual imputations whether or not the contractor pleads them, prove the facts behind them, and invite the court to find that a contractor shown to have taken deposits without performing the work and to have had their licence suspended suffers no further reputational harm from an unproven suggestion of rudeness. On those facts the defence would have a strong prospect of success, because the proven matters go to the heart of the contractor’s business reputation and are far more serious than the unproven one.

Change the facts so that the unproven imputation is that the contractor assaulted the customer, and the result may differ. An allegation of violence is a different and serious kind of harm that proof of dishonest business conduct may not neutralise, and the defence would then fail for that imputation.

Differences between jurisdictions

The amended defence applies in New South Wales, Victoria, Queensland and Tasmania (s 26), South Australia (s 24), the Australian Capital Territory (s 136 of the Civil Law (Wrongs) Act 2002) and the Northern Territory (s 23 of the Defamation Act 2006).¹¹

Western Australia has not adopted the 2021 amendments. Its s 26 remains in the original form, requiring the contextual imputations to be carried “in addition to the defamatory imputations of which the plaintiff complains”.¹² The reasoning in Besser v Kermode therefore continues to describe the position in Western Australia, and a plaintiff there can still limit the defence by suing on every imputation the publication conveys.

The principal Queensland appellate decision on the assessment of further harm, Weatherup, was decided under the original wording but concerned the second step of the defence, which the amendment did not change; it continues to be applied, including by the Full Court of the Federal Court.⁶

Getting advice

Whether contextual truth is available turns on what meanings the publication conveys, which of them can be proved and how the proven matters compare in seriousness with those that cannot. Both the pleading of the defence and the response to it are technical, and the choice of imputations on each side is often decisive. Advice is usually most valuable before the pleadings are finalised, because the choice of imputations pleaded is often decisive.