The Offence of Criminal Defamation in New South Wales

Defamation cases have been in the headlines lately, with the high-profile cases of Johnny Depp v Amber Heard, Peter Dutton v Shane Bazzi, John Barilaro v Jordan Shanks and Google and Ben Roberts-Smith v The Age, The Sydney Morning Herald and The Canberaa Times triggering a great deal of public discussion – and even heavily-polarised debate – about not only the credibility of the parties in those cases, but also the laws of defamation generally.

Limitations on free speech

In the context of the United States, the First Amendment to the nation’s constitution purports to guarantee freedom of speech.

But even in that country, free speech is certainly not absolute. Rather, limitations to that ‘guarantee’ are in place to prohibit hate speech and other forms of vilification, as well as publications that unfairly impugn a person’s character to such an extent they cause pecuniary and reputational damage (defamation laws).

In contrast to the US, Australia does not have a national Bill or Charter of Rights. In fact, our nation is the only Western Democracy not to have one.

Here, the only entrenched, national protection in respect of free speech is an extremely limited freedom of political communication which has been inferred into the Australian Constitution by the High Court.

In the absence of such protections, our politicians have virtually unfettered power to pass laws which impose limitations on not just free speech, but on a wide range of individual freedoms and legal safeguards against arbitrary or excessive state control.

Defamation laws

Laws of defamation are generally consistent across Australian states and territories and, perhaps partly due to the absence of national protections, defamation is far easier to prove here than in many other Western Democracies; causing Australia to be described as ‘the defamation capital of the world’.

Unlike most other Western nations, Australian defamation laws enable not just the individuals who post content on social media sites to be sued, but ‘third party publishers’ such as owners and administrators of social media sites and pages to be held legally responsible for content posted by others to their platforms – which is something Google has learned the hard way time and time again.

And while there have been recent changes to the law with a view to reducing the number and types of defamation cases brought before the courts, members of the public remain significantly limited in their ability to criticise not only ‘regular’ people, but also public figures such as celebrities and politicians.

Public figures

In relation to public figures, laws in most other Western nations impose a higher bar when it comes to establishing defamation.

For example, in many United States jurisdictions, plaintiffs must prove that a defendant engaged in ‘actual malice’ through their publication in order to mount a successful claim.

There is no such requirement here, and public figures – whether taxpayer funded politicians such as John Barilaro, Peter Dutton or former Attorney General Christian Porter, or others who find themselves in the public domain – enjoy the same standards when it comes proving defamation as everyone else.

Civil versus criminal defamation

And while posting defamatory content without a valid defence can see a publishers face significant monetary penalties through civil proceedings, the conduct will not result in a potential prison sentence.

There is, however, a section of New South Wales criminal law which, if invoked, can see a person finding themselves behind bars for maligning another.

The offence of criminal defamation in New South Wales

Section 529(3) of the Crimes Act 1900 (NSW) is headed ‘Criminal Defamation’ and makes it an criminal offence punishable by a maximum penalty of three years in prison for a person, without lawful excuse, to publish a matter that is defamatory of another living person knowing the matter to be false and intending to cause serious harm to that person or any other person, or being reckless as to whether such harm would be caused.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You published a matter that was defamatory to another living person,
2. You intended by doing so to cause serious harm to that person or to any other person or were reckless as to whether serious harm would be caused,
3. You knew the published matter was false, and
4. Where there is evidence of a lawful excuse, you did not have a lawful excuse for your conduct.

What is the meaning of ‘defamatory’?

Subsection 529(11) provides that the definition of ‘defamatory’ is the same as that in the Defamation Act 1995 (NSW), which is where the material in question:

1. Was published, meaning communicated in any way to at least one other person other than the person who was allegedly defamed,
2. Identified the person allegedly defamed, whether directly or indirectly, and
3. Had a defamatory meaning, meaning it was likely to:

• cause the person to be shunned, shamed or avoided by others,
• adversely affect the reputation of the person in the minds of right-thinking members of society, or
• damage the person’s professional reputation by suggesting a lack of qualifications, skills, knowledge, capacity, judgment or efficiency in the person’s trade, business or profession

What is a lawful excuse?

Subsection 529(4) of the Crimes Act provides that:

“A defendant in proceedings for an offence under this section has a lawful excuse for the publication of defamatory matter about the victim if, and only if, the defendant would, having regard only to the circumstances happening before or at the time of the publication, have had a defence for the publication if the victim had brought civil proceedings for defamation against the defendant.”

Such defences to the publication of defamatory material in civil proceedings are:

1. Justification, which is where the defamatory material is substantially true,
2. Contextual truth, where imputations arising from the context of the material are substantially true,
3. Absolute privilege, where the material was published in the course of the proceedings of a parliamentary body,
4. Public documents, where the publication was a fair copy, summary or extract of a public document,
5. Fair reporting of proceedings of public concern, where the matter was of public concern and was already published,
6. Qualified privilege, where the information was provided to a person with an interest in a subject and was provided to inform the person about the subject, providing the information was reasonable in the circumstances,
7. Honest opinion, where the publication was an honest opinion rather than a statement of fact, related to a matter of public interest and was based on proper material,
8. Innocent dissemination, where the person was an employee or agent of the primary publisher and did not know he or she was publishing defamatory material, and this was not due to his or her negligence,
9. Triviality, where the publication was unlikely to cause harm, and
10. Responsible communication in the public interest, which is a defence introduced in 2021.

Duress is a legal defence to the charge. This is where you were threatened with serious harm to you or a person close to you unless you engaged in your conduct, the threat acted on your mind at the time of your conduct, was serious enough to justify your conduct and was continuing rather than momentary.

If evidence of a lawful excuse or legal defence is before the court, the onus shifts to the prosecution to prove beyond a reasonable doubt that the excuse or defence does not apply.

If the prosecution is unable to do this, you must be found not guilty.

Limitation on bringing the charges 

Subsection 529(7) of the Crimes Act provides that proceedings for criminal defamation can only be brought with the consent of the New South Wales Director of Public Prosecutions.