Defamation Fact Sheet - updated May 2010
Defamation is primarily a civil action that allows a person whose reputation has been harmed by way of publication of materials, by words, or by any other means, to sue those responsible. The laws of defamation aim to balance between the protection and the promotion of freedom of speech.
Australia adopted uniform laws of defamation in 2006. However, it is more accurate to say the that the present laws are "almost uniform" rather than entirely uniform. Some differences between the jurisdictions still remain. Prior to the Defamation Act 2005, there were eight separate defamation statutes throughout the states and territories of Australia.
In order to bring a defamation action a plaintiff must show three things. Firstly, the material must have been published, which in this context means that it has been communicated to someone other than the aggrieved person. Means of communication can be oral, written or by conduct. Most commonly this takes the form of a newspaper publication or television or radio broadcast. The publication of books also gives rise to a number of defamation actions. Secondly, the person aggrieved by the publication must have been identified by that publication. The defamatory matter must be ‘of’ and ‘concerning’, the defamed person. Identification need not be by naming the person. It can arise from the inclusion of a number of characteristics that enable a person to be identified. Where a group of people have been collectively defamed, provided the group is limited in size, each member of that group may be a potential plaintiff.
Finally, the material published must be defamatory. If the published material:
- exposes a person to ridicule, or
- lowers the person's reputation in the eyes of members of the community, or
- causes people to shun or avoid the person, or
- injures the person's professional reputation, then the published material is defamatory.
Clearly, elements of defamation law are subjective and unpredictable.
The defamation law recognises a number of circumstances in which the interest in the material being published outweighs the potential damage to a reputation. These are codified in terms of defences to defamation actions which include:
- Justification: It is a complete defence to an action for defamation to prove that the defamatory statement is substantially true.Substantial truth means that provided the justification meets the substance of the imputation, minor inaccuracy will not exclude the defence. The publisher’s motive is irrelevant, if the publisher can show that the imputation is true then it does not matter that he/she was motivated by malice.
- Contextual truth: The defence of contextual truth requires the defendant to show two elements; (a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one 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. The contextual imputations must arise from the matter complained of and not a prior publication, that is, injury to reputation must be causally related to the publication complained of.
- Absolute privilege: The defence of absolute privilege is attached to the occasion and not the content, which means it, is a defence only when the defendant proves that the defamatory matter was published on an occasion of absolute privilege. Absolute privilege applies to occasions such as statements made during parliamentary proceedings, publication in the course of proceedings in a court. All statements made in the course of judicial proceedings made by parties, witness, legal representative, members of the jury, or by the judge. The privilege extends to members of tribunals and to advocates, litigants and witnesses.
- Honest opinion: The defence of honest opinion requires; the defamatory materials to be a subject matter of public interest, a comment rather than a statement of fact which is based on true or privileged statements of facts and, fairness in the sense of being made honestly by a person who did not believe the statements to be untrue and was not otherwise actuated by malice. however, this defence cannot be defeated only on the basis of malice, ill will or spite, provided those opinions are honestly made. The defence does not require that the comment be reasonable. If the opinion is honestly held, it may be exaggerated or prejudices or accompanied by malice.
- Qualified privilege: Like an absolute privilege, qualified privilege is also attached to the occasion, the occasion attracts the privilege. qualified privilege can be established if the defendant proves that:
- the recipient has an interest or apparent interest in having information on some subject;
- the matter is published to the recipient in the course of giving to the recipient information on that subject; and
- the conduct of the defendant in publishing that matter is reasonable in the circumstances
This privilege can be lost in certain circumstances such as if the material published was not published honestly for the information of public or the advancement of education, the publication is used for an improper purpose or the publication is accompanied by express or simply malice.
Publication of public documents: It is a defence if it can be proved that the published material was contained in a public document, or a fair copy, summary or extract from a public document. A public document includes, but is not limited to, reports by a parliamentary body, a judgment by a court, government documents and records open to the public.
Fair report: fair report can be a defence if proved the matter was, or was contained in, a fair report of any proceedings of public concern. Public concerning proceeding includes proceedings of a parliamentary body, international organisations and conferences, courts and tribunals, s associations, Ombudsman’s reports and other proceedings that are treated as proceedings of public concern.
Implied Freedom of Political Communication: In 1994, the High Court held that political communication could give rise to a privileged occasion as “each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that effect the people of Australia”. This means that certain material that is otherwise defamatory may be immune if it is a fair and accurate report of parliamentary or judicial proceedings, or public meetings concerning matters of public interest. The defendant must not believe that the imputation was untrue nor can the publication be actuated by malice.
- Innocent dissemination: It is a defence available to only certain publishers who can prove that he/she published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor (subordinate distributor is someone who was not the first or primary distributor of the matter, and was not the author or originator of the matter, and did not have any capacity to exercise editorial control over the content of the matter before it was first published), and the he/she neither knew, nor ought reasonably to have known, that the matter was defamatory, and such lack of knowledge was not due to any negligence on his/her part.
Examples of parties who can be subordinate distributors includes; a bookseller, newsagent or news-vendor, or a librarian, or a wholesaler or retailer of the matter, or a provider of postal or similar services by means of which the matter is published, or a broadcaster of a live programme or a provider of services consisting of: the processing, copying, distributing or selling of any electronic medium in or on which the matter is recorded, or the operation of, or the provision of any equipment, system or service, by means of which the matter is retrieved, copied, distributed or made available in electronic form, or an operator of, or a provider of access to, or a person who, on the instructions or at the direction of another person, prints or produces, reprints or reproduces or distributes the matter for or on behalf of that other person.
- Triviality: This defence is applicable where the circumstances of the publication are such that the person defamed is not likely to suffer harm. The circumstances of the publication may include the fact that prior to the publication the persons to whom the defamatory matter was published already knew the material contained in the publication or the fact that the publication was to a limited range of people.
- Consent: There is a defence under common law that the plaintiff expressed or impliedly consented to the act being done towards him/her of which he/she complains. However, the defence does not mean that if there is consent to publication of one kind, there will be a voluntary assumption of risk that the publication will convey an imputation which was not anticipated.
If there is a multiple publication of matter in more than one Australian jurisdictional area, the substantive law applicable in the Australian jurisdictional area with which the harm occasioned by the publication as a whole has its closest connection must be applied in this jurisdiction to determine each cause of action. In determining which jurisdiction constitutes that which has the closest connection with the harm occasioned, the following factors are taken into account.
- The place at the time of publication where the plaintiff was ordinarily resident or, in the case of a corporation that may assert a cause of action for defamation, the place where the corporation had its principal place of business at that time, and
- The extent of publication in each relevant Australian jurisdictional area, and
- The extent of harm sustained by the plaintiff in each relevant Australian jurisdictional area, and
- Any other matter that the court considers relevant.
There is a provision under the defamation act for an early resolution procedure by way of an offer to make amends and to facilitate the making of apologies without the risk of liability being admitted.
For disputes that proceed to court, the remedy usually sought by a defamed person is an award of damages. However, exemplary or punitive damages, which are normally designed to punish the defendant and to deter him/her from repeating the conduct, cannot be awarded under the uniform legislation.
In some cases, the plaintiff may seek to prevent an upcoming publication by means of an interlocutory injunction.
The law of defamation and Internet
Internet Censorship Laws in Australia
Electronic Frontiers Australia: Censorship and Free Speech
Electronic Frontiers Australia: Australian Defamation laws and Internet
Danny Yee's Internet Censorship and Civil Liberties (Australia) page
Caslon Analytics: Censorship Online Free Speech Guide
Caslon Analytics: Censorship, Free Speech and Australian Law
Speech on uniform Defamation Law
Lange and Reynolds Qualified Privilege
Defamation and the Moral Community
Freedom of Expression -v- The Multiple Publication Rule
The Law of Defamation- For Material Published After 1 January 2006
Australian Press Council: Free Speech Activities
Political Discussion as a defence to defamation
Nationwide news Pty Ltd v Wills 
Australian Capital Television Pty Ltd & New South Wales v Commonwealth 
Theophanous v Herald & Weekly Times Ltd 
Stephens v West Australian Newspapers Ltd 
Thompson v Australian Capital Television Pty Ltd 
Lange v ABC 
Dow Jones & Company Inc v Gutnick 
Bashford v Information Australia (Newsletters) Pty Ltd 
Zunter v John Fairfax Publications Pty Ltd  NSWSC
Frawley v State of New South Wales  NSWSC
Shari-Lea Hitchcock v John Fairfax Publications Pty Limited  NSWSC
Des Butler and Sharon Rodrick, Australian Media Law, Thomson lawbook Co.2007
Patrick George, Defamation Law of Australia, Lexisnexis Butterworths 2006.
Law Book Company, Media Law and Practice, (looseleaf service)
Michael Gillooly, The Law of Defamation in Australia and New Zealand, The Federation Press, 1998
Lange v Australian Broadcasting Corporation (1997) 145 ALR 96
Classification (Publications, Films and Computer Games) Act 1995 (Cth)
Broadcasting Services Act 1992 (Cth)
Defamation Act 2005 NSW
Defamation Act 2005 WA
Defamation Act 2005 QLD
Defamation Act 2006 NT
Defamation Act 2005 SA
Defamation Act 2005 TAS
Defamation Act 2005 Vic
Defamation Act 2001 (No 88 of 2001)
Defamation Act 1974 NSW
Wrongs Act 1958 (Vic)
Australia Contempt Statutes and Codes
New South Wales Law Reform Commission Discussion Paper 43 (2000) - 'Contempt by Publication'
Communications Law Centre activities / research
The Communications Law Centre is undertaking an
ARC project in the area of social attitudes to defamation - contact Roy Baker (Sydney)
Communications Law Centre, 'Free Speech in the New Millenium: a framework for discussion', 2000
Submission to review of Computer Games Classification.