Defamation Defences Summary Sheet

Question 1

When does the justification (truth) defence to defamation apply?

Answer 1

When imputations are substantially true.

Question 2

What is the strongest defence for defammation?

Answer 2

Justification (truth).

Question 3

For the justification defence for defamation, what must the defendant prove?

Answer 3

They must really believe what they wrote was truth.

Question 4

For the justification (truth) defence for defamation, can proving truth be difficult?

Answer 4

Yes.

Question 5

For the justification (truth) defence to defamation, why can proving truth be difficult?

Answer 5

This is because what seems true to one person may not seem true to another.

Question 6

What is the contextual truth defence to defamation?

Answer 6

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.

Question 7

What is the reason for a contextual truth defence for defamation?

Answer 7

Lesser defamatory imputations can do no further harm to the reputation of the plaintiff because the more serious matters are too.

Question 8

What does the absolute privilege defence to defamation apply to?

Answer 8

Court and parliament.

Question 9

What does the defence of absolute privilege for defamation cover?

Answer 9

Any matter that emerges during proceedings of a parliamentary body or published in the course of a court/tribunal case.

Question 10

What are examples of things covered by the absolute privilege defence for defamation?

Answer 10

Transcripts, documents, footage, evidence, judgements, orders/other determinations of a court/tribunal.

Question 11

The absolute privilege defence only applies to participant while what is occurring?

Answer 11

The court or parliament is formally in session.

Question 12

What does absolute privilege protect?

Answer 12

It protects everything that is said (or documents that are tabled).

Question 13

For absolute privilege, does it matter how defamatory something is?

Answer 13

No.

Question 14

For absolute privilege, does it matter how defamatory something is?

Answer 14

No.

Question 15

Writers only claim the defence of absolute privilege when?

Answer 15

They are giving evidence in open court, appealing before a commission of inquiry or called to give evidence in a parliamentary inquiry.

Question 16

What does qualify privilege include?

Answer 16

An implied freedom of political communication/comment.

Question 17

When does qualified privilege apply?

Answer 17

It applies where defamatory matter is published to a person with a right to know such things.

Question 18

What are four examples of where qualified privilege may apply?

Answer 18

Potential employers, health providers, police and teachers.

Question 19

What must publication be for the qualified privilege defence?

Answer 19

Reasonable.

Question 20

The qualified privilege defence only applies when?

Answer 20

The person defamed has been giving an opportunity to put their side.

Question 21

For the qualified privilege defence, does the defendant have to prove truth of material?

Answer 21

No, but should try to verify it.

Question 22

When does the publication of public documents defence apply?

Answer 22

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.

Question 23

For the publication of publication documents, what must the document be published for?

Answer 23

Honestly for the information of the public or the advancement of education.

Question 24

What are examples where the publication of public documents defamation excuse may apply?

Answer 24

Court/tribunals and transcripts, orders and judgements, reports and papers published by parliamentary and local councils and any document published officially in another country.

Question 25

When does the fair report of proceedings of public concern defence to defamation apply?

Answer 25

The matter was (or was contained in) a fair report of any proceedings of public concerned.

Question 26

For the fair report of proceedings of public concern, does it matter if what was published was true?

Answer 26

No.

Question 27

What are the eight places where the defence of fair report of proceedings of public concern applies?

Answer 27

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.

Question 28

For the defence of honest opinion for defamation, there needs to be no what?

Answer 28

Malice.

Question 29

For the defence of honest opinion to be use, the piece needs to express an opinion on what?

Answer 29

A matter of public interest.

Question 30

For the defence of honest opinion, the content clearly needs to be?

Answer 30

Opinion and not fact.

Question 31

For the defence of honest opinion, the article needs to be fair and…

Answer 31

Reasonable.

Question 32

For the defence of honest opinion, the article needs to be based on?

Answer 32

Proper material.

Question 33

For the defence of honest opinion, does the person making the defence need to honestly believe it?

Answer 33

Yes.

Question 34

When does the defence of innocent dissemination occur?

Answer 34

Defendant published matter merely in capacity of, or as an employee or agent of, a subordinate distributor.

Question 35

Who may the defence of innocent dissemination apply to?

Answer 35

Newsagent, bookseller, librarian, wholesaler, retailer and copying service.

Question 36

For innocent dissemination, what must the defendant not know?

Answer 36

They must not know (or ought to reasonably have known) that the matter was defamatory.

Question 37

For innocence defamation, a lack of knowledge cannot be due to?

Answer 37

Negligence.

Question 38

What would an example be of negligence for the defence of innocent dissemination?

Answer 38

Ignoring correspondence flagging the matter.

Question 39

What is the defence of triviality?

Answer 39

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.