Defences to Defamation

Defences to Defamation in Australia

You were hard done by or felt strongly about a particular issue and spoke out about it, causing the wrong doer or an organisation public humiliation. The recipient of your outcry is now suing you for defamation. Are there any defences?

In Australia, we have six main defences to accusations of defamation: grounds of truth, absolute privilege, qualified privilege, fair comment, innocent dissemination and triviality.

See this previous post that sets out more information about defamation law in Australia: “Have You Been Defamed? What You Need to Know About Defamation Law in Australia”.

1. Grounds of truth

You can defend against a claim of defamation by proving that the defamatory sentiment is, in fact, true. If you can prove the truth behind the implications you have made, you have successfully defended your case. Please note: it’s not enough to prove your words were true. You must be able to prove the negative sentiment behind the comment is true.

2. Absolute privilege

If you’ve spoken out within a tribunal that acts like a court (for example a parliamentary hearing) you have absolute privilege to communication how you see reasonably fit, and can use this defence against a defamation case.

3. Qualified privilege

It is your right to communicate honestly with another person without the threat of being sued for defamatory remarks. The plaintiff can only win a case for defamation against you in this situation if he/she can successfully show that your remarks were made in malice with ill intent, and not in honest conversation.

4. Fair comment

This defence to defamation applies to any sentiments expressed regarding a topic of public interest. The comment does not need to be reasonable or true. You are able to express your freedom of opinion on any public matters without the threat of a defamation case.

5. Innocent dissemination

If you’re a newsagent, bookseller, librarian or internet service provider and you unknowingly publish defamatory material without negligence, you are not liable.

6. Triviality

Proving that the defamatory matter is unlikely to cause the plaintiff any harm shows the grounds for defamation were trivial. A trivial complaint cannot be held up in court.

If in doubt about the grounds of a defamation claim against you, please seek legal advice from a lawyer specialising in defamation law.

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