The Defence of Justification

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The defence of justification, sometimes referred to as the defence of truth, is incorporated in Australian legislation under section 25 of the Defamation Act 2005[1] (‘the Defamation Act’) as a complete defence to a claim for defamation. The defence of justification requires the defendant to prove that, on the balance of probabilities, all alleged imputations complained of by the plaintiff are “substantially true” in substance and in fact[2].

Substantially True

For the defence of justification to apply, the statements or imputations complained of must be ‘substantially true’. What is considered ‘substantially true’ for the purposes of section 25 is defined in schedule 5 of the Defamation Act[5]:

substantially true means true in substance or not materially different from the truth”.

There is a distinction between what is considered true in fact and true in substance. Where undisclosed facts fail to alter the meaning of the imputations inferred from a defamatory publication or matter, a publicationwould bedeemed true in fact but not in substance[6]. Conversely, where undisclosed facts do alter the meaning of the imputations inferred by a defamatory publication or matter so that the imputations inferred will no longer be considered defamatory or slanderous, the publication will be deemed both true in fact and substance. Relevantly, facts that do not materially alter the meaning of a defamatory matter complained of can be left out of a pleading, whereas matters that do materially alter the meaning of the defamatory matter complained of should be included.

In the UK case of Sutherland v Stopes[7], Lord Shaw of Dunfermline illustrated the need for substantial rather than complete accuracy as follows:

If someone stole a saddle and sold it the next day without the owner’s consent and we find out that someone didn’t steal a saddle rather a harness and sold it not the next day rather the next week without the owner’s consent, then libel would be justified.

[…] Alternatively, “the allegation of fact must tell the whole story” and must not be “meticulously true in fact” but “false in substance”. For instance, if someone accidently took my saddle instead of his own and, sold it, then the jury would not find that libel is justified.”

In the UK case of Alexander v North Eastern Railway Co[8], the plaintiff brought a case against the defendant for libel claiming that the defendant had defamed him by making a publication stating that the plaintiff had been ordered to pay a fine for failing to purchase a valid train ticket and would spend three weeks in jail if he defaulted on the fine. In reality, the relevant period of imprisonment was only two weeks. The defendant argued that the publication was substantially true. The plaintiff argued that the defendant has failed to accurately describe the penalty issued to the plaintiff, and accordingly, that the publication was not substantially true.

Justice Blackburn held that the substance of the imputation was not altered by the insignificant difference in the number of weeks the defendant had stated that the plaintiff would be liable to spend in jail if he failed to pay the fine, and judgement was ordered in favour of the defendants.

The Presumption of Falsity

When a claim for defamation in brought, the court presumes that the publication made is false (the presumption of falsity). Consequently, the court will presume that the imputations complained of that have had, or are likely to have, an adverse impact on the plaintiff’s reputation (provided these imputations can, in fact, be inferred from the publication complained of) are by their very nature defamatory due to the falsity untruthfulness or inaccuracy of those imputations.

When a defendant is able to prove that the imputations complained of are in effect true or substantially true, the presumption of falsity will be rebutted, the imputations complained of will no longer be deemed defamatory as they are deemed true, and the defendant will have a complete defence to the claim against them.

The reasoning behind this approach was explained by Street ACJ in the case of Rofe v Smith’s Newspapers Ltd[3] as follows:

“… by telling the truth about a man, his reputation is not lowered beyond its proper level, but is merely brought down to it”.

Furthermore, “substantially true” imputations are difficult to prove as they are often published, yet unsupported, by material or objective evidence.

In the case of Asbog Veterinary Services Pty Ltd & Anor v Barlow[4], the plaintiff sought damages for seven defamatory publications made by the defendant in relation to the emergency treatment of the defendant’s dog. The defendant claimed that she was overcharged for the treatment and antibiotics provided to her dog, and she contacted the plaintiff about her complaint. The plaintiff provided a reasonable explanation to the defendant for the amount charged and subsequently provided a letter to the defendant stating words to the same effect.

The defendant proceeded to publish the letter on social media alongside a number of defamatory reviews and comments about the plaintiff. When the plaintiff brought proceedings for defamation, the defendant sought to rely on the defence of justification by claiming that the statements she had made about the plaintiff were substantially true. The court held that the publication complained of did contain defamatory imputations about the plaintiff and that the defendant had failed to establish that the imputations were, in fact, substantially true. Accordingly, the defence of justification failed, and the court ruled in favour of the plaintiff and awarded the plaintiff $25,000 in damages (interestingly, the original vet bill was in the amount of $427).

The presumption of falsity has been imposed for over two centuries, dating back to Anglo-Australian defamation law. Whilst heavily debated, it has proven an onerous concept to remove from practice[9], and the presumption of falsity remains significant and embedded in Australian defamation law to date[10].

The Presumption of Falsity in New South Wales

Prior to the introduction of the national uniform defamation laws in Australia, Justice Hunt confirmed in the case of Morgan v John Fairfax & Sons Ltd[14] that the presumption of falsity did not exist and was not appliable in New South Wales. Accordingly, if a plaintiff wished to rely on the concept of falsity, the plaintiff would need to particularise this claim in their pleadings, and the defendant would then be allowed the opportunity to cross-examine the plaintiff on this point.

Case law is still unclear on whether the presumption of falsity exists in New South Wales as part of common practice or whether it remains an exception. In the 2013 case of Born Brands Pty Ltd v Nine Network Australia Pty Ltd (No 4)[15], Justice Adamson stated at paragraph 20[16]

“Section 47 [of the Defamation Act 1974] was repealed by the 2005 Act. However, the position at common law as enunciated in Rigby v Associated Newspapers, which had pre-dated the enactment of s[ection] 47, continued to apply: the plaintiff could lead evidence on the issue of damages to prove that the defamatory imputation was false”.

As such, despite the introduction of the national uniform defamation laws, the application of the presumption of justice in New South Wales remains ambiguous.

Onus of Proof and Admission of Falsity

In most legal causes of action, the onus of proof will be on the plaintiff to prove that the matters alleged can be supported by evidence and are, in fact, true, on the balance of probabilities. Defamation matters are relatively unique in comparison to other types of litigious matters in that once the plaintiff is able to establish that a publication consisted of defamatory statements, the court will generally presume that the defamatory matter is false[11], and from that point on, the onus will primarily be on the defendant to establish a defence to that claim[12].

In circumstances where the defendant does not expressly plead truth or justification in defence of the publications made, this will automatically be accepted by the court as an admission of falsity[13], and the court will maintain the presumption that the publications made were false, irrespective of whether or not they were in fact true.

Contact Harris Defamation Lawyers

If you have been accused of publishing defamatory statements and your statements were true or substantially true, you may have a defence under the defence of justification.

Contact Harris Defamation Lawyers for a no-cost, obligation-free consultation to discuss your legal rights and options.

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