Defamation Basics Part II

Part II - Defences to a defamation claim

In the last blog we discussed what is required to bring a defamation claim in Western Australia under the Defamation Act 2005 (WA) (see blog post, Part I – Bringing a defamation claim in Western Australia).  Today we will consider what defences are available to a defendant facing such a claim.

To balance the private right to protect one’s reputation with the public right to freedom of speech, there are a range of defences provided in Division 2 of Part 4 of the Act.

  • Truth and justification – if the publication is true, then the defendant has a complete defence.  The legislation also provides that if the defendant proves that the defamatory imputations are substantially true, then the defendant has available the defence of justification.
  • Contextual truth – applies where there is a publication which has a number of defamatory imputations, some of which are true and some that are not, and the untruthful imputations do no further harm to the reputation of the plaintiff due to the truth of the statements that are correct.
  • Honest opinion – for this defence the defendant must prove: (i) the matter was an expression of opinion of the defendant, rather than a statement of fact; (ii) the opinion related to a matter of public interest; and (iii) the opinion was based on proper material.  The defence is defeated if the plaintiff proves that the opinion was not honestly held.
  • Innocent dissemination – this defence most relates to publishers who are not the authors of material, such as a website or social media platform that allows users to post material online. The defendant must prove: (i) they were not the authors; (ii) they neither knew, nor ought reasonably to have known, that the material was defamatory; and (iii) their lack of knowledge was not due to their negligence.
  • Triviality – available if the defendant proves that the circumstances of the publication were such that the plaintiff was unlikely to sustain any damage to their reputation.
  • Qualified privilege – the publication may have been defamatory, but the defendant was obliged to publish it for legal, moral or social reasons, and so is excused from liability.  The defence is defeated if the plaintiff proves that the publication was motivated by malice. This defence is most commonly relied upon by the mainstream press.
  • Absolute privilege – the defendant will not be liable if the publication of the statements were made in the course of particular public forums, such as in parliament or during proceedings in a court or tribunal.
  • Public documents and fair report of proceedings of public concern – a defendant will not be held liable for publication of defamatory material that was in a fair report of any proceedings of public concern, such as proceedings in public of a parliamentary body or proceedings in public of a court of tribunal, or statements contained in a public document (such as Parliamentary Report or Court Judgment).

Check out our next blog for the final instalment of our defamation series, Part III – Remedies: offers to make amends and litigation.

Cove Legal offers specialist expertise in the area of media law, with a focus on protecting corporate brands and reputations.  Roger Blow is a leading defamation lawyer in Western Australia and can be found listed as a social media law expert on expertguide.com.  He regularly provides commentary concerning media law issues to television, radio stations and newspapers such as the West Australian, The Age and AFR.

If you would like advice or assistance with any legal matters involving defamation, we would be keen to hear from you.  Please contact:

Roger Blow, Principal, Ph: +61 8 6381 0327 or roger@covelegal.com.au

Tennille Provost, Senior Associate, Ph: +61 8 6381 0326 or tennille@covelegal.com.au  

This publication is not legal advice. You should seek professional advice before taking any action based on its contents.

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