The defences of contextual truth, justification and partial justification are often referred to synonymously. However, the defence of contextual truth is different to the other two defences in that the defence of contextual truth requires at least one or more imputations complained of to be substantially true, and in light of the substantial truth of those imputations, the remainder of the imputations complained of do no further harm to the plaintiff’s reputation. Unlike partial justification, contextual truth can be a complete defence to a claim.
Contextual truth is defined in section 26 of the Defamation Act 2005 (Qld) (‘the Defamation Act’) as follows:
“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, 1 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”.
Contextual Imputations
Substantial Truth
The defence of contextual truth applies where a publication complained of carries several defamatory imputations, and the defendant can show that one or more of the imputations were substantially true, and considering the substantial truth of those imputations, the further imputations complained of did not result in further harm being caused to the plaintiff’s reputation[1].
In essence, the two elements that must be established by the defendant in order for the defendant to rely on the defence of contextual truth are:
- The publication made, when read as a whole, conveys one or more substantially true imputations (commonly referred to as ‘contextual imputations)[2];
- When the publication is read in context of the contextual imputations, the remaining imputations carried by the publication are essentially incapable of further harming the plaintiff’s reputation by nature of the substantial truth of the publication at large[3].
In determining whether the defamatory imputations established by the plaintiff are unlikely to cause further harm to the plaintiff’s reputation in context of the substantial truth of the defendant’s publication when read as a whole, the courts will weigh the plaintiff’s imputations against the facts and circumstances that establish the substantial truth of the defendant’s contextual imputations[4].
Publication to Be Defeated as a Whole
Relevantly, where a defendant intends to rely on the defence of contextual truth, the defence must defeat the defamatory matter complained of as a whole[5]. In other words, the defence will not succeed where the defendant is only able to establish that a portion of the defamatory imputations that derive from a particular publication complained of may be defeated by the defence of contextual truth.
Imputations Must Differ in Substance
The contextual imputations must arise solely from the defendant’s own publication; in other words, the defendant will not be able to rely on publications made by a third party to establish contextual imputations of the defendant’s own publication, even in circumstances where the third party publication was made at the same time as the defendant’s publication[6]. Furthermore, the defendant’s contextual imputations cannot simply be reformulations of the plaintiff’s alleged imputations[7] but must differ in substance, even if the imputations relate to the same subject matter[8].
To satisfy the requirement that the contextual imputations must be ‘different in substance’ from the plaintiff’s imputations, the contextual imputations pleaded must[9]:
- Be pleaded in addition to the plaintiff’s imputations;
- Be separate and distinct from the imputations pleaded by the plaintiff; and
- Not “plead back” the plaintiff’s imputations.
In essence, the defence of contextual truth allows the defendant the opportunity to plead separate imputations to those complained of by the plaintiff in order to justify the publication made, which is generally prohibited in the application of other relatable defences. However, the defendant’s contextual imputations are subject to the same requirements of fairness and practical justice as the imputations alleged by the plaintiff in that they must be adequately precise[10]. A plaintiff may be able to bring an application to have the defendant’s contextual imputations (or part of the imputations) struck out on the basis that the imputations pleaded are of such poor quality that they are deemed ‘obviously untenable’ (in other words, unable to be established, upheld or otherwise maintained)[11].
In the case of Fairfax Media Publications Pty Ltd v Kermode[12], the defendants made a number of publications that implied that the plaintiff:
”…had obtained a 20 million dollar windfall for his companies by improperly influencing public servants and politicians in his favour by conferring benefits upon them…” and ”… had acted improperly in that he had caused large donations to be made to the Labor Party and thereby maintained his companies’ rights in about 11 million dollars’ worth of free taxi plates…”.
The defendants pleaded the defence of contextual truth and suggested alternative contextual imputations to those alleged by the plaintiff. The court held that the defence of contextual truth could not be established by reason that there was a requirement for the defendant to plead alternate imputations but failed to do so.
Separate and Distinct Imputations
It is necessary to separate and distinguish each defamatory imputation complained of from the other imputations complained of in order to determine whether the defence of contextual truth applies to a particular publication. Without separating one imputation from another, the defendant will be unable to show which of the imputations complained of were substantially true, and accordingly, how the substantial truth of those imputations may influence the effect of the publication (specifically the other imputations complained of) on the plaintiff’s reputation when read as a whole.
The test applied to determine whether a particular imputation is sufficiently separate and distinct is whether the imputation is ‘substantially separate’ and ‘self-contained’ as opposed to being‘…merely one ingredient of a component whole which, when taken as a whole, conveys an imputation which is not conveyed by a part or parts of the publication taken separately…’[13]. Accordingly, whether the imputations are separate and distinct will a matter of analysing the fact, degree, and substance of each imputation rather than form [14].
Contact Harris Defamation Lawyers
If you have been accused of publishing a defamatory comment and you believe that the defence of contextual truth may apply to your matter, contact Harris Defamation Lawyers today for a no-cost, obligation-free consultation to discuss your legal rights and options.
