Defences To Defemation

Question 1

Inadequate elements defence

Answer 1

As with negligence, the defendant may argue that any or all of the three principles of a defamation action have not been proved. The defendant may argue that the statement is not defamatory, or that it does not refer to the plaintiff, or that he or she did not publish the statement. If not, the defendant may rely on any of the following defences.

Question 2

Justification

Answer 2

The defence of justification applies when a defamatory statement is substantially true. A person who commits an act of indecent exposure before a crowd of 50 people cannot claim defamation if a publication wrongly states that there was a crowd of 30, as the substance (core issue) of the publication is true.

Question 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, tribunals or communication between husband and wife

Question 4

Fair report of proceedings of public concern

Answer 4

A defendant can argue that the material was no more than a fair report of proceedings published for the information of the public or for educational purposes. Proceedings of public concern are those involving:
• a parliamentary body, local government, court or tribunal because their procedures are usually
open to public scrutiny
• government inquiries, law reform bodies, the ombudsman, international organisations or
conferences where governments are represented
• learned, professional, trade, sporting or recreational associations where membership or
contractual issues are involved
• company shareholders or other meetings dealing with a matter of public interest.

Question 5

Innocent dissemination

Answer 5

The defence of innocent dissemination protects people who may unknowingly distribute defamatory information, such as printing companies, booksellers, libraries and Internet or email providers. For this defence to be successful, these people would need to show that they:
• published the material as a subordinate distributor or as an employee or agent of one (a subordinate
distributor is any person other than the author, primary distributor or editor of a publication)
• did not know (nor should have known) that the publication contained defamatory information
• did not have an obligation to check for defamatory material.

Question 6

4 common defences to defamation

Answer 6

Justification
Fair report
Absolute privilege
Innocent dissemination