Defamation

Question 1

Defence 1 – Justification

Answer 1

The defence of justification applies when a defamatory statement is substantially true. This means that the vast majority of the article is true.

Question 2

Defence 2 – Contextual truth

The claim that the plaintiff was without a helmet does not further harm the plaintiff’s reputation.

Answer 2

The defence of contextual truth applies when a number of defamatory statements are made within the same context of statements that are substantially true, and the defamatory statements do not further harm the reputation of the plaintiff.

Question 3

Defence 3 – Absolute privilege

Answer 3

A person may be able to use the defence of absolute privilege where he or she can prove that the defamatory material was published in relation to proceedings of parliament, parliamentary bodies, courts or tribunals.

Question 4

Defence 4 – Publication of public documents

Answer 4

It is a defence to an action for defamation to prove that the published material was a fair copy, summary or extract of a public document, but only if the material was published in the public interest or for educational purposes. A public document is one readily available from a parliamentary body, court, tribunal, local government or statutory authority.

Question 5

Defence 5 – Fair report of proceedings of public concern

Answer 5

A defendant can argue that the material is essentially a fair report of proceedings that is published for the information of the public or for educational purposes. ‘Proceedings’ of public concern are those involving.

Question 6

Defence 6 – Qualified privilege

Answer 6

Qualified privilege protects a person who has no malice in publishing information that is damaging to another person and published it for various good reasons

Question 7

Defence 7 – Honest opinion

Proper material is a statement that is substantially true or relates to public documents or a fair report of proceedings of public concern

Answer 7

A defendant may claim that the defamatory material is an expression of his or her honest opinion (as a commentator) rather than a statement of fact. The matter must be of public interest and the opinion must be based on proper material.

Question 8

Defence 8 – Innocent dissemination

Answer 8

The defence of innocent dissemination protects people who may unknowingly distribute defamatory information, such as printing companies, booksellers, libraries and internet or email providers.

Question 9

Defence 9 – Triviality

Answer 9

This defence applies where the publisher can show that the plaintiff is unlikely to be harmed by the publication of the defamatory material.

Question 10

Element 1 – The statement is defamatory

. It is not necessary to prove that the defendant had the intention to hurt the plaintiff.

Answer 10

The plaintiff must first establish that the statement made by the defendant is defamatory. A statement is defamatory if it lowers a person’s reputation or standing in the community, exposing them to ridicule, contempt or hatred.

Question 11

Element 2 – The statement is untrue

Answer 11

The plaintiff must prove that the defamatory statement is untrue. A plaintiff cannot be defamed if the statement is substantially true.

Question 12

Element 3 – The defamatory statement refers to the plaintiff

Answer 12

The plaintiff must establish that he or she was the person to whom the statement refers. While the person defamed need not be mentioned by name, it may be sufficient to prove that people reading, hearing or seeing the statement would reasonably conclude that it was about the plaintiff.

Question 13

Element 4 – The defendant published the defamatory statement

Answer 13

The plaintiff must prove that the statement was communicated to a person other than the plaintiff. It is not defamation for a person to make untrue or derogatory comments directly to the person concerned if it is done in private. However, these comments will become actionable once a third person reads, hears or sees the defamatory material.

Question 14

Limitation of actions

An action for defamation must be brought within one year from the date of the publication of the matter

Answer 14

A court may extend the limitation period by up to 3 years from the date of the publication of the allegedly defamatory material. This can only be extended if the court is satisfied that it was not reasonable for the plaintiff to have commenced an action within 1 year from the date of publication.

Question 15

Impact of defamation on the plaintiff

Answer 15

• Loss of reputation – This could include loss of status.
• Emotional impact of the defamatory material – This could be a consequence of the publicity of
the claim.
• Loss of wages and livelihood – This could be a consequence of loss of reputation.
• Unemployment – This could be a consequence of loss of reputation.

Question 16

Impact of defamation on the defendant

Answer 16

• Costs – This could occur when the defendant loses the case.
• Need to sell assets – This could be a consequence of a high damages award.
• Public humiliation – This could be a consequence of the publicity of the claim.

Question 17

Rights protected by the law

Answer 17

character and a reputation
have your reputation protected
freedom of expression – with limits
seek a remedy if your reputation is unfairly harmed.