What are the Defences to Defamation in New South Wales?

Australia has historically been described as ‘the defamation capital of the world’ due to the ease by which claims can be brought and the difficulty that defendants face in overcoming them, as well as the fact that ‘third party publishers’ such as Google, YouTube, Facebook, Instagram and Twitter– and even administrators of social media pages – can be held liable for content published by others through their platforms and pages.

Review of defamation laws

In 2018, this situation led the Australian Council of Attorneys-General to initiate a review of defamation laws with a view to enacting consistent reforms across the nation to better protect publishers and bring us more in line with other Western countries.

The Council convened a Defamation Working Party, led by New South Wales, which sought to make recommendations for reform to facilitate an ‘appropriate balance between public interest journalism and protection of individuals from reputational harm’.

Submissions were received from various stakeholders including the legal sector, media, telecommunications and technology companies and public interest groups such as those advocating for civil liberties.

Several recommendations for reform were made and Model Defamation Provisions were drafted and published.

Defamation Amendment Act 2020

The process culminated in the enactment of the Defamation Amendment Act 2020 (NSW) which amended the Defamation Act 2005 (NSW) by introducing three significant changes to existing defamation laws in New South Wales, all of which came into force on 1 July 2021.

The amendments 

These changes can be summarised as follows:

1. Requirements regarding concerns notices

A concerns notice is a letter sent to a publisher by or on behalf of a person who considers him or herself to have been defamed (an aggrieved person).

The letter particularises the imputations that are considered to be defamatory and requests that action be taken to make amends.

With a view to promoting early resolution and reducing the number of matters brought before the courts, a new section 12B of the Defamation Act now prohibits a defamation action from being commenced unless:

1. The aggrieved person has given the proposed defendant a concerns notice in respect of the matter concerned, and
2. the imputations to be relied on by the aggrieved person in the proposed proceedings are particularised in the concerns notice, and
3. the applicable period for an offer to make amends has elapsed.

Section 14 of Act sets the ‘applicable period’ at 28 days.

2. ‘Serious harm element’

In an attempt to reduce the number of trivial cases going to hearing, a new section 10A of the Act introduces a ‘serious harm element’, which requires that a publication must have “caused, or… [be] likely to cause, serious harm to the reputation of the person” in order for a defamation action to be successful.

In the context of companies that are legally permitted to take action for defamation (known as ‘excluded corporations’), the company must have suffered ‘serious financial loss’ in order to succeed.

The presence or absence of ‘serious harm’ may be determined by a judicial officer at any time during the court proceedings.

3. Public interest defence

In order to provide greater protection in respect of publications that are in the public interest, a new public interest defence has been introduced.

The public interest defence

The defence is contained in section 29A of the Act which is titled ‘Defence of publication of matter concerning issue of public interest’.

The section provides that it is a defence to the publication of defamatory matter if the defendant proves that:

• the matter concerns an issue of public interest, and
• the defendant reasonably believed that the publication of the matter was in the public interest.

When determining whether that defence has been established the court may consider a range of factors, including:

• the seriousness of any defamatory imputations in the publication,
• the extent to which the publication distinguishes between suspicions, allegations and proven facts,
• the extent to which the publication relates to the performance of the public functions or activities of the aggrieved person,
• whether it was in the public interest for the matter to be published expeditiously,
• the source/s and integrity of the information relied upon, 
• in the case of a confidential source, whether there is good reason for the person’s identity to be kept confidential,
• whether the publication contained the substance of the aggrieved person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response,
• any other steps taken to verify the information in the matter published, and
• the importance of freedom of expression in the discussion of issues of public interest.

It is hoped the defence will go some way towards protecting those who publish material that is critical of politicians and other public figures.

Other defences

The already-existing statutory defences to defamation are as follows:

1. Justification

Section 25 of the Act states that ‘[i]t is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.

2. Contextual truth

Section 26 provides a defence where the defendant proves that:

• the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (“contextual imputations”) that are substantially true, and
• the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

3. Absolute privilege

Section 27 sets out the defence of absolute privilege, which relates to material published in the course of the proceedings of a parliamentary body, including (but not limited to):

• documents by order, or under the authority, of the body, and
• debates and proceedings of the body by or under the authority of the body or any law, and
• evidence before the body, and
• presentations or submissions of documents to the body.

The defence also extends material published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to):

• documents filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process), and
• evidence before the court or tribunal, and
• any judgment, order or other determination of the court or tribunal.

The defence further extends to material which would attract absolute privilege in another Australian jurisdiction.

4. Public documents

Section 28 provides a defence to publishing:

• a public document or a fair copy of a public document, or
• a fair summary of, or a fair extract from, a public document.

A public document is defined as:

• any report or paper published by a parliamentary body, or a record of votes, debates or other proceedings relating to a parliamentary body published by or under the authority of the body or any law, or
• any judgment, order or other determination of a court or arbitral tribunal of any country in civil proceedings and including:
• any record of the court or tribunal relating to the judgment, order or determination or to its enforcement or satisfaction, and
• any report of the court or tribunal about its judgment, order or determination and the reasons for its judgment, order or determination, or
• any report or other document that under the law of any country:
• is authorised to be published, or
• is required to be presented or submitted to, tabled in, or laid before, a parliamentary body, or
• any document issued by the government (including a local government) of a country, or by an officer, employee or agency of the government, for the information of the public, or
• any record or other document open to inspection by the public that is kept:
• by an Australian jurisdiction, or
• by a statutory authority of an Australian jurisdiction, or
• by an Australian court, or
• under legislation of an Australian jurisdiction, or
• any other document issued, kept or published by a person, body or organisation of another Australian jurisdiction that is treated in that jurisdiction as a public document under a provision of a law of the jurisdiction corresponding to this section.

The section states that a defence of publishing a public document can only be defeated if the plaintiff proves the defamatory material was not published honestly for the information of the public or the advancement of education.

5. Fair reporting of proceedings of public concern

Section 29 makes it a defence where the defendant establishes that the defamatory material:

• was, or was contained in, an earlier published report of proceedings of public concern, and
• was, or was contained in, a fair copy of, a fair summary of, or a fair extract from, the earlier published report, and
• the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair.

Proceedings of public concern is defined any proceedings:

• in public of a parliamentary body, or
• in public of an international organisation of any countries or of the governments of any countries, or
• in public of an international conference at which the governments of any countries are represented, or
• in public of:
• the International Court of Justice, or any other judicial or arbitral tribunal, for the decision of any matter in dispute between nations, or
• any other international judicial or arbitral tribunal, or
• in public of a court or arbitral tribunal of any country, or
• in public of an inquiry held under the law of any country or under the authority of the government of any country, or
• in public of a local government body of any Australian jurisdiction, or
• of a learned society, or of a committee or governing body of the society, under its relevant objects, but only to the extent that the proceedings relate to a decision or adjudication made in Australia about:

–  a member or members of the society, or

–  a person subject by contract or otherwise by law to control by the society, or

• of a sport or recreation association, or of a committee or governing body of the association, under its relevant objects, but only to the extent that the proceedings relate to a decision or adjudication made in Australia about:
• a member or members of the association, or
• a person subject by contract or otherwise by law to control by the association, or
• of a trade association, or of a committee or governing body of the association, under its relevant objects, but only to the extent that the proceedings relate to a decision or adjudication made in Australia about:
• a member or members of the association, or
• a person subject by contract or otherwise by law to control by the association, or
• of a public meeting (with or without restriction on the people attending) of shareholders of a public company under the Corporations Act 2001 of the Commonwealth held anywhere in Australia, or
• of a public meeting held anywhere in Australia if the proceedings relate to a matter of public interest, including the advocacy or candidature of a person for public office, or
• of an ombudsman of any country if the proceedings relate to a report of the ombudsman, or
• in public of a law reform body of any country, or
• conducted by, or proceedings of, a person, body or organisation of another Australian jurisdiction that are treated in that jurisdiction as proceedings of public concern under a provision of a law of the jurisdiction corresponding to this section.

6. Qualified privilege

Section 30 makes it a defence where the defendant proves that:

• the recipient of the information has an interest or apparent interest in having information on some subject, and
• the matter is published to the recipient in the course of giving to the recipient information on that subject, and
• the conduct of the defendant in publishing that matter is reasonable in the circumstances.

In determining whether the defendant’s conduct is reasonable, the court is to consider:

• the public interest in the matter, and
• whether the material relates to the performance of public functions, and
• the seriousness of any defamatory imputation, and
• whether the material distinguishes between suspicions, allegations and proven facts, and
• whether it was in the public interest to publish the matter expeditiously, and
• the nature of the business environment in which the defendant operates, and
• the integrity of the sources of the information;
• whether the substance of the material is person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and
• any other steps taken to verify the matter published, and
• any other circumstances that the court considers relevant.

The section provides that a recipient only has an apparent interest in the information on some subject if at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.

7. Honest opinion

Section 31 provides a defence where the defendant, or an employee or agent of the defendant, or commentator, establishes that:

• the matter was an expression of opinion of the defendant rather than a statement of fact, and
• the opinion related to a matter of public interest, and
• the opinion is based on proper material.

Proper material is that which:

• is substantially true, or
• was published under absolute or qualified privilege, or
• was published in a context that attracted the protection of a defence under this section, or the defence of public documents or fair reporting.

The section further states that an opinion does not cease to be based on proper material only because some of the material on which it is based is such if the opinion might reasonably be based on such of the material as is proper material.

A defence of honest opinion is only defeated if the plaintiff proves that: the opinion was not honestly held by the defendant, or any employee or agent or the commentators as the case may be, at the time the defamatory matter was published,

8. Innocent dissemination

Section 32 makes it a defence where it is proved the defendant:

• published the material merely in the capacity, or as an employee or agent, of a subordinate distributor, and
• neither knew, nor ought reasonably to have known, that the matter was defamatory, and
• lack of knowledge was not due to any negligence on the part of the defendant.

A subordinate distributor is someone who:

• was not the first or primary distributor of the matter, and
• was not the author or originator of the matter, and
• did not have any capacity to exercise editorial control over the content of the material or publication thereof before it was first published.

The section provides that a person is not the first or primary distributor merely because he or she was involved in the capacity of a:

• bookseller, newsagent or news-vendor, or
• librarian, or
• wholesaler or retailer of the matter, or
• provider of postal or similar services by means of which the matter is published, or
• broadcaster of a live programme,

Or the provider of services consisting of the:

• processing, copying, distributing or selling of any electronic medium, or
• operation of, or the provision of any equipment, system or service, by means of which the matter is retrieved, copied, distributed or made available in electronic form, or

Or an operator of, or a provider of access to, a communications system by means of which the matter is transmitted, over whom the operator or provider has no effective control, or

Or a person who, on the instructions or at the direction of another person, prints or produces, reprints or reproduces or distributes the matter for or on behalf of that other person.

9. Triviality

And finally, section 33 provides a defence where the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.