Defences

There are a number of defences to a complaint of defamation under the Defamation Act 2005, there are also common law defences, and any defences available under other Acts continue to operate. The defences to defamation under the Act are as follows:

• truth (justification) – this is relied on as a defence in the Ben Roberts-Smith defamation case
• contextual truth
• absolute privilege
• qualified privilege (ss27, 28 and 30)
• honest opinion
• innocent dissemination
• triviality

A person may suffer damage to their reputation, but may not win a defamation action if the defamer can rely on any of these defences.

Truth – now ‘justification’

The defence of justification was previously known as the defence of truth. The defence states that if a defendant can prove that the defamatory imputations of which the plaintiff complains are substantially true, then the defence of justification is made out. An example would be where if a newspaper began referring to a person as ‘Cheesy Toes’, imputing that the person had infected feet that oozed a cheese-like substance, a defence would be that the person had infected feet.

Contextual Truth

The contextual truth defence has two elements. First it requires that the context in which the defamatory imputations appeared contained other imputations that were substantially true. Secondly, the defamatory imputations do no further harm to the plaintiff’s reputation because of the substantial truth of the contextual imputations.

In the Caccavo case before the Tasmanian Supreme Court, the defendants raised the defence of contextual truth, stating that they had made factual assertions in several emails concerning the plaintiffs and their trade in live abalone to China, which included some issues with higher than normal mortality rates of shipped abalone.

The defamatory imputation was that the plaintiffs had single-handedly destroyed the live abalone trade in China for Tasmanian abalone farmers with their practices. The defendants asserted that there was sufficient contextual truth to other imputations around the actual practices of the plaintiffs businesses such that the plaintiffs’ reputations were not harmed by the alleged defamatory imputations. Although the case has been settled out of court it illustrates contextual truth: if the facts asserted necessarily lead to a negative assessment of a plaintiff, will defamatory imputations be absorbed as contextual truth because they can do no more harm than the facts?

Absolute Privilege

Absolute privilege and the publication of public documents cover parliamentary privilege, and court documents. Section 27 is absolute privilege, section 28 is the defence of publication of public documents.

Section 27 grants the defence of absolute privilege on certain occasions. Such occasions arise with the publication of documents in the course of the proceedings of a parliamentary body or an Australian court or tribunal. This might include where a parliamentary body, court or tribunal has ordered a document published or requested evidence be presented.

Publication of public documents provides a defence where the defamatory matter is contained in a public document or a fair summary of that document. To qualify as a public document, the document must fit the defining criteria. A public document can be a report or paper of a parliamentary body, a judgment or determination of a court or tribunal, a record of votes, a document that is required to be published by the law of any country, or is required by parliamentary body.

Qualified Privilege

Qualified privilege requires that the plaintiff have published defamatory matter to a recipient where:

• the recipient has an interest in having information on some subject; and
• the matter is published in the course of providing that information; and
• the conduct of the defendant was reasonable in the circumstances.

What will be taken into account in determining whether conduct was reasonable includes:

• The extent to which the matter was of public interest; and
• The seriousness of any defamatory imputation published; and
• The nature of the business environment in which the defendant operates.

These are only three of the factors taken into account. The plaintiff can defeat such a defence if the plaintiff can establish that the publication was actuated by malice.

Honest Opinion

Honest opinion requires three primary matters to be proved by the defendant:

• The matter was an expression of opinion of the defendant rather than a statement of fact; and
• The opinion related to a matter of public interest; and
• The opinion is based on proper material.

The defence is also available where the defendant is defending the opinion of an employee or agent, or where the defamatory matter published was the opinion of a third party. The defence requires that:

• the material is substantially true or
• published on an occasion of absolute or qualified privilege (either under legislation or at common law) or
• was published on an occasion that attracted the protection of the defences of publication of public documents or fair report of proceedings of public concern.

Innocent Dissemination

The defence of innocent dissemination can be relied on where the defendant was a subordinate distributor. A subordinate distributor is someone who had no editorial control over the content of a publication, or was not the author or primary distributor. Examples of subordinate distributors include newsagents, electronic distributors, and librarians. The defence requires three factors to be present:

• The defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor; and
• The defendant neither knew, nor ought reasonably to have known, that the matter was defamatory; and
• The defendant’s lack of knowledge was not due to any negligence on the part of the defendant.

So, if the Gunston case was to be heard under the Defamation Act 2005, rather than the previous Act (as the defamation occurred before the enactment of the uniform legislation), the State Library, or a newsagent who regularly stocked and supplied The Mercury would qualify as a subordinate distributor.

Triviality

Triviality is a defence that can be raised where a defendant can establish that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm. Triviality is a threshold test that considers the nature of the allegation rather than the size of the audience. An example would be a statement that failed to cause any damage to a person’s reputation, such as a magazine saying that a seven times married man ‘ran through women like a herd of hungry goats on an island’.