If you have been accused of making a defamatory statement, there are a number of defences to defamation claims, upon which you could rely including:
Truth or justification
The defendant in a defamation case will have a complete defence if they can prove that the defamatory comments, or the imputations or meaning of the comments, are true. This can be more difficult than it sounds: if the plaintiff in the case alleges that a statement is defamatory because of something that could be inferred from the comment, the defendant needs to prove that the imputations are true, not just the words from their mouth.
If, for example, a magazine published an article that said a celebrity had cosmetic surgery and inferring that they were being dishonest, in order to rely on the ‘truth’ defence, the magazine would need to prove not only that the celebrity had cosmetic surgery, but also that he or she was, in fact, dishonest.
Fair comment or honest opinion
If a person has made a comment, or expressed an opinion, about a matter of public interest, they could be protected by the common law defence of ‘fair comment.’ Even if the statement is defamatory, if the comment is about a matter of public interest, and would be reasonably understood to be a matter of opinion (not a statement of fact), and is based upon known facts, the person who made the statement may not be liable for defamation. The existence of this defence is often relied upon by talk-back radio stations and newspapers that publish the opinions of third parties (i.e. letters to the editor). In order for the defence of fair comment to succeed, the comment must not have been malicious and must have been honestly held by the person who made the statement.
All comments and statements made by members of parliament in the course of parliamentary proceedings, and statements made by judges, jurors, barristers, witnesses, and parties to court cases are protected by what is called “absolute privilege.” The law recognises that in those circumstances, freedom of communication is of utmost importance and so the participants are completely protected from being sued for defamation.
Absolute privilege attaches to the circumstances of the communication, not the person – so politicians could still be liable for defamatory comments made outside parliament, and parties to a court case could be liable for comments made outside the court room.
The law recognises that there are a lot of situations where frank and honest communication is beneficial to society, and the law grants protection to people against claims of defamation. The list of circumstances to which the defence of qualified privilege may apply is long, and includes such things as:
- making a statement to someone when under a legal or moral duty where the other person has a legitimate interest in receiving the information – such as giving a statement to the police, or an employer giving a reference about the character of a person to someone who may employ that person
- making a statement to further a legitimate common interest – for example comments made between employees about the running of a business, or between union members and union officials in industrial relations matters
- Protection of a legitimate interest – such as defending your reputation after having been attacked in public by another person
- Fair reporting on public proceedings– journalists who fairly and accurately report on parliamentary and judicial proceedings can assert the protection of the qualified privilege defence
- Discussion about the government and political matters – it is in the interests of society for everyone in Australia to engage in discussion of political matters and the actions of the government, so opinions about government matters and political issues are quite often protected by the qualified privilege defence.
In order to successfully invoke the defence of qualified privilege, the statements must not have been made maliciously or with reckless indifference to the truth, and the wider the audience to whom the statement is made the more care should be taken in making sure the statement is reasonable.
This defence protects people who unwittingly publish defamatory information – such as newsagents who display newspaper headlines that are later found to be defamatory, or internet service providers who publish defamatory material without negligence on their part.