The document outlines the legal framework surrounding defamation in Australia, emphasizing the necessary elements for a successful defamation claim, including publication, identification of the plaintiff, and the defamatory nature of the material. It details the various defenses available to defendants, such as truth, honest opinion, and qualified privilege, and discusses the implications of new laws that unify defamation statutes across states. Additionally, it highlights the financial and procedural complexities involved in defamation actions, as well as the impact on journalism and public discourse.

1. Defamation: Action and Defences
•What constitutes
defamation?
•When does
defamation occur?
•How can you
defend yourself?
Notes prepared by Paul Bethell & Martin Hirst

2. DEFAMATION
• The law that most affects journalists, writers and
publishers
• Competing rights – free speech against right to
defend reputation
• History of Defamation law in Australia – formerly
different state and territory laws
• New laws introduced by all states and territories in
2006 now unify the law right across Australia

3. Defamation – a definition
• For a defamation action to be successful,
three elements must be satisfied:
1. the information was communicated by the defendant to a third
person other than the plaintiff (publication);
2. the material identifies the plaintiff (identification); and
3. the information/material contains matter that is defamatory,
regardless of whether the material was intentionally published or
not (defamatory matter).
What is defamation?
At its simplest, defamation is to
spread bad reports about someone
which could do them harm.

4. DEFAMATION
• It can be a VERY LONG process.
• It can be VERY EXPENSIVE – for both sides.
• Many cases don’t get to court as a result.
• New laws made some attempt at reform
• Personal damages capped at @$300,000 – but
per publication?
• Aggravated damages also possible
• Costs can also be awarded and can be HUGE!

5. DEFAMATION
• At the heart of defamation is the
concept of a lowered “reputation”
• Lawyers work on “imputations” –
what are the main messages or
impressions that the average
consumer/reader/viewer/listener
would get?
• The intention of the
writer/broadcaster isn’t important

6. DEFAMATION
• “I'M THE VICTIM, WAILS BOOZING,
POT-SMOKING, VIOLENT,
RACIST, COWARDLY,
UNAPOLOGETIC, LYING, ODIOUS,
TRANSFER-LISTED LEE BOWYER
(NOW TRY TO SUE US YOU LITTLE
SCUMBAG!) “
Daily Mirror (UK), 19 Dec 2001
• What are the ‘imputations’ of this
story?

7. DEFAMATION
• An action for defamation doesn’t RESTORE your
reputation but merely allows you to seek damages
for pain and suffering or for economic loss.
• “Slander” and “libel” distinction now abolished - Use
the term “defamation” in all cases.
• It is mainly a CIVIL law matter – so PLAINTIFFS SUE
DEFENDANTS . Defendants are found either LIABLE
or NOT LIABLE for DAMAGES and also COSTS.

8. DEFAMATION
• CHECKLIST APPROACH:
• Best to take it step by step:
• Is there a defamation in theory?
• Is the plaintiff identified?
• Has there been ‘publication’?
• Are there any defences available?

9. DEFAMATION
• 1. IS THERE A DEFAMATION IN
THEORY?
• Concept of REPUTATION.
• Courts will look for “imputations” -
What others think about you
• NOT what you think about yourself
• PERSONAL REPUTATION
• PROFESSIONAL REPUTATION

10. DEFAMATION
• TEST FOR DEFAMATORY MATERIAL - Ask -
does the material -
• EXPOSE THE PERSON TO HATRED
CONTEMPT OR RIDICULE?
• LOWER THE PERSON ‘IN THE ESTIMATION
OF A RIGHT-THINKING MEMBER OF
SOCIETY’?
• CAUSE THE PERSON TO BE ‘SHUNNED OR
AVOIDED’?

11. DEFAMATION
• It doesn’t have to be words. Cartoons,
photographs, video, even the layout of stories
on a page can be a problem…..
• The test is: “HOW WOULD THE ORDINARY
PERSON INTERPRET IT? WHAT MEANING
WOULD THE ORDINARY PERSON GET FROM
THE MATERIAL?
• Negatives and denials are no defence.
• Mistaken identity no defence

12. DEFAMATION
• 2. IS THE PLAINTIFF IDENTIFIED?
• In order to have your reputation
lowered you need to be identified
• Beware INNUENDO
• Important to be precise about the person you are
writing about (“Detective Lee” case 1934).
• Beware using fictitious names – Artemus Jones case
1910. See Pearson 4e pp:196-198

13. DEFAMATION
• Groups of people can sue – IF they are thought
to be referred to – Mount Druitt Case 2000.
• “Corporations” with more than 10 employees +
“public bodies” like councils CANNOT sue.
• But charities and not-for-profit organisations
CAN still sue.
• The dead can’t sue (except in Tasmania).

14. The class we failed
• Implication students
had failed their HSC
exams
• Identified individuals as
members of this group
of failed students
• Students successfully
sued and won an
apology
On 8 January 1997, the Daily Telegraph
published the headline, "The class we
failed" concerning was the Year 12 class at
Mount Druitt High School in outer Western
Sydney in which no student scored a
Tertiary Entrance Rank (TER) above 50
(the maximum possible mark is 100).
Although the article made clear that the
newspaper believed that the state had
failed the students, many accused the
Telegraph of branding the students
themselves as failures and showing a full
year photo identifying students.

15. DEFAMATION
• 3. HAS THERE BEEN PUBLICATION?
• Must be communicated to a third party.
• The medium doesn’t matter
• Publication is where the material is RECEIVED
(Dow Jones v. Gutnick 2002).
• Anyone involved in publication can be sued
• Anonymity online isn’t guaranteed
• Actions can be brought up to 1 year from
publication.

16. DEFAMATION
• RECAP ON DEFAMATION ESSENTIALS:
• Has a reputation been lowered?
• Is the plaintiff identified?
• Has there been ‘publication’?
• If all these are satisfied,
then the court will discuss
whether there is a defence.

17. DEFAMATION DEFENCES
• The defences split into two categories:
• Those that are based on the material complained
of being true (Truth and Honest Opinion)
• Those that can succeed even if the material isn’t
true
(Absolute Privilege, Fair Report and Qualified
Privilege, Innocent Dissemination, Triviality, Offer
of Amends).

18. DEFAMATION
• TRUTH OR JUSTIFICATION DEFENCE
• Truth doesn’t lower a reputation, it corrects it.
• Material published must be “substantially
true”.
• However, truth needs to be proved – evidence
is needed
• Standard of proof - ‘on a balance of

19. HONEST OPINION
• Relates mainly to opinion, comment, reviews and
criticism.
• Opinion pages, editorials, sports, arts, film, music,
restaurant reviews and also to letters and possibly
weblogs and online comments.
A newspaper in Sydney has been successfully sued by a
restaurant group after one of their food critics wrote a scathing
review of his experience in their establishment.
The Australian courts have ordered John Fairfax Publications, the
owners of The Sydney Morning Herald, to pay the owners of the
Sydney restaurant, Coco Roco, on charges of defamation.

20. HONEST OPINION
• It must relate to a matter of public interest
• The opinion must be based on “proper
material” – either true facts or matters
protected by privilege.
• This “proper material” must be contained
in the publication, or must be widely
known.
• The opinion must be “honestly held” – that
is the action is not malicious

21. FAIR REPORT
• Protects “fair and accurate” reports of court and
parliament
• Also includes other meetings such as:
proceedings of “a sport or recreation association”,
a “trade association”, a “public meeting…. of
shareholders”
• or a “public meeting (with or without restriction
on the people attending) held anywhere in
Australia if the proceedings relate to a matter of
public interest”.

22. allows free communication in certain
relationships without the risk of an action for
defamation –
generally where the person communicating the
statement has a legal, moral or social duty to
make it and the recipient has a corresponding
interest in receiving it
QUALIFIED PRIVILEGE
Matters raised on the floor of the legislature (state & federal); OR
statements made in the course of judicial proceedings made by parties,
witness, legal representative, members of the jury, or by the judge attracts
ABSOLUTE PRIVILEGE
The defence of absolute privilege is attached to the occasion and not the
content

23. QUALIFIED PRIVILEGE
• Allows things to be published that may be
defamatory even if they can’t be proved
• Must involve important, urgent matters and
issues that should be brought to public
attention
• But the journalist must act “reasonably in the
circumstances” – high standards and motives
are required

24. QUALIFIED PRIVILEGE
• What does “reasonably in the
circumstances” mean?
• the extent to which the matter is
of public interest and whether it
needed to be published urgently
• the extent to which the matter
relates to the performance of
public functions or activities of
the plaintiff
• how serious the defamatory
imputation is

25. QUALIFIED PRIVILEGE
• the extent to which suspicion,
allegation and proven fact is
distinguished
• the integrity of the sources
• whether there was a
reasonable attempt to get the
plaintiff’s side of the story and
publish this response
• the steps taken to verify the
information.

26. POLITICAL QUALIFIED PRIVILEGE
• Lange v. Australian Broadcasting Corporation
1997 – Common law case
• Australian constitution contained an “implied
guarantee” that people in Australia should be free
to discuss matters of government and politics
• But publication must be “reasonable in the
circumstances”
• Common Law Qualified Privilege – relates to
personal disclosures

27. INNOCENT DISSEMINATION
• Gives protection to people who sell or distribute
defamatory material but who couldn’t be
expected to know that it was defamatory.
• But would rarely be available to journalists, writers
or publishers – except with live broadcasting “in
which the broadcaster has no effective control
over the person who makes the statements”
“newsagent’s defence”

28. INNOCENT DISSEMINATION
• It typically would affect newsagents or libraries
• Doesn’t affect Internet Service Providers
• But controversial for weblogs and discussion
forums
• ISPs are deemed to have “no effective control”
over websites
• But the websites ARE deemed to have “effective
control” over people who post on them

29. TRIVIALITY
• “It is a defence to the publication of
defamatory matter if the defendant proves that
the circumstances of publication were such
that the plaintiff was unlikely to sustain any
harm.”
• Possible defence for comedy and satire – no-
one is expected to take it seriously and so there
is no consequent damage to reputation

30. OFFER OF AMENDS DEFENCE
• Without accepting liability, a publisher can make
an “offer to make amends”
• Needs to be made in writing “as soon as
practicable” after the publisher became aware of
the alleged defamation,
• But must be within 28 days of a written
complaint being made about the material which
details the plaintiff’s concerns.

31. OFFER OF AMENDS
DEFENCE
• It MUST contain an offer to
publish a correction
• It MUST contain an offer to pay
any reasonable expenses incurred by
the plaintiff (the costs of legal advice)
• It MAY contain an offer of an apology
• It MAY contain an offer to pay
compensation for economic damages

32. OFFER OF AMENDS DEFENCE
• Can be a complete defence – even if refused by
the plaintiff - as long as it is:
• “reasonable in all the circumstances”, taking into
account things like:
• the prominence and speed of the correction or
apology
• the extent to which it reached the same
audience or readership as the initial defamation.

33. NON-DEFAMATION REMEDIES
• Battle in negotiations over the new defamation
laws about whether businesses could use
defamation
• The new Defamation Acts prevent “corporations”
of more than 10 employees from suing.
• It means businesses must look to other legal
remedies when their business reputation is
damaged.

34. TRADE PRACTICES ACT 1974
• Applies to “corporations” in the course of “trade
and commerce”
• S.52(1) deceptive and misleading conduct
• S. 53 False or misleading representations
• Can be sued by anyone who feels they were
misled or deceived and by anyone who claims
they’ve lost money as a result of being misled or
deceived….

35. TRADE PRACTICES ACT 1974
• BUT - Section 65A Defence:
• S.52 and 53 do not apply to “prescribed
information providers”
• Defined as “a person who carries on a business of
providing information”
• So news organisations – a bit like “innocent
disseminators” – they can’t vouch for the
information provided to them by interviewees and
other sources

36. Reading
• Pearson: Journalist’s guide 4e Ch.8-9
• Pearson: Blogging & tweeting Ch.2
• Leiboff: Creative Practive Ch.6