Defamation Defences Summary Sheet Flashcards
When does the justification (truth) defence to defamation apply?
When imputations are substantially true.
What is the strongest defence for defammation?
Justification (truth).
For the justification defence for defamation, what must the defendant prove?
They must really believe what they wrote was truth.
For the justification (truth) defence for defamation, can proving truth be difficult?
Yes.
For the justification (truth) defence to defamation, why can proving truth be difficult?
This is because what seems true to one person may not seem true to another.
What is the contextual truth defence to defamation?
It is that if the most serious of several defamatory imputations can be proved to true, a defendant can mount a contextual truth defence for the lesser imputations that are linked to that.
What is the reason for a contextual truth defence for defamation?
Lesser defamatory imputations can do no further harm to the reputation of the plaintiff because the more serious matters are too.
What does the absolute privilege defence to defamation apply to?
Court and parliament.
What does the defence of absolute privilege for defamation cover?
Any matter that emerges during proceedings of a parliamentary body or published in the course of a court/tribunal case.
What are examples of things covered by the absolute privilege defence for defamation?
Transcripts, documents, footage, evidence, judgements, orders/other determinations of a court/tribunal.
The absolute privilege defence only applies to participant while what is occurring?
The court or parliament is formally in session.
What does absolute privilege protect?
It protects everything that is said (or documents that are tabled).
For absolute privilege, does it matter how defamatory something is?
No.
For absolute privilege, does it matter how defamatory something is?
No.
Writers only claim the defence of absolute privilege when?
They are giving evidence in open court, appealing before a commission of inquiry or called to give evidence in a parliamentary inquiry.
What does qualify privilege include?
An implied freedom of political communication/comment.
When does qualified privilege apply?
It applies where defamatory matter is published to a person with a right to know such things.
What are four examples of where qualified privilege may apply?
Potential employers, health providers, police and teachers.
What must publication be for the qualified privilege defence?
Reasonable.
The qualified privilege defence only applies when?
The person defamed has been giving an opportunity to put their side.
For the qualified privilege defence, does the defendant have to prove truth of material?
No, but should try to verify it.
When does the publication of public documents defence apply?
It applies if the matter was contained in a public document or is a fair copy of that document or a fair summary of (or extract from) a public document.
For the publication of publication documents, what must the document be published for?
Honestly for the information of the public or the advancement of education.
What are examples where the publication of public documents defamation excuse may apply?
Court/tribunals and transcripts, orders and judgements, reports and papers published by parliamentary and local councils and any document published officially in another country.
When does the fair report of proceedings of public concern defence to defamation apply?
The matter was (or was contained in) a fair report of any proceedings of public concerned.
For the fair report of proceedings of public concern, does it matter if what was published was true?
No.
What are the eight places where the defence of fair report of proceedings of public concern applies?
A parliament, local council meetings, courts, public inquiries and standing commissions of inquiry, international organisations or governments, sporting tribunals, public meetings and meetings of public companies’ shareholder.
For the defence of honest opinion for defamation, there needs to be no what?
Malice.
For the defence of honest opinion to be use, the piece needs to express an opinion on what?
A matter of public interest.
For the defence of honest opinion, the content clearly needs to be?
Opinion and not fact.
For the defence of honest opinion, the article needs to be fair and…
Reasonable.
For the defence of honest opinion, the article needs to be based on?
Proper material.
For the defence of honest opinion, does the person making the defence need to honestly believe it?
Yes.
When does the defence of innocent dissemination occur?
Defendant published matter merely in capacity of, or as an employee or agent of, a subordinate distributor.
Who may the defence of innocent dissemination apply to?
Newsagent, bookseller, librarian, wholesaler, retailer and copying service.
For innocent dissemination, what must the defendant not know?
They must not know (or ought to reasonably have known) that the matter was defamatory.
For innocence defamation, a lack of knowledge cannot be due to?
Negligence.
What would an example be of negligence for the defence of innocent dissemination?
Ignoring correspondence flagging the matter.
What is the defence of triviality?
If defendant can prove that circumstances of publication were such that plaintiff was unlikely to sustain any harm, then they can rely on the triviality defence.
