Defences

Contributed by Carolyn Tan and current to 1 September 2005

JUSTIFICATION (TRUTH)

In WA, truth is a complete defence to an action for defamation. (See also Criminal Code WA s.356). In some states for a plea of justification to succeed the defendant must prove both substantial truth AND that the matter was published in the public benefit. In WA, it is not necessary to prove the matter. The uniform defamation laws proposed may bring the other States into line with the law in WA in this regard.

The onus will be on the defendant (the alleged defamer) to prove that the matter is true in substance and in fact; she or he must also prove the truth and fact of every material particular sued about. If, for example, a person says X is a murderer, she or he must prove the fact of murder.

FAIR COMMENT

(SEE ALSO S.355 CRIMINAL CODE WA)

This defence is available so long as what has been said constitutes opinion and genuine comment and does not purport to be a statement of facts. It is often difficult to classify any particular allegation as fact or comment.

Much will depend upon the context of the expression. If it purports to be a criticism of a published work or published performance, then, on the face of it, it will be comment. On the other hand, bare inferences or allegations without reference to the facts on which they are based will generally be treated as statements of fact. As always in the law of defamation, the test is not what the defendant meant, but what the ordinary, unprejudiced reader would take the statement to mean. This defence often arises in areas of artistic criticism, such as music, art, theatre and literature, etc.

There are further elements that must be established in order for the defence of fair comment to succeed:

• the opinion must be honestly held by the writer.
• the opinion must not be motivated by malice. The opinion is not honest if any ulterior motive such as spite has distorted it.
• it must be fair comment on a matter of public interest.

The proposed uniform defamation laws also require the opinion to be based on proper material that is substantially true or subject to privilege (see below for the reference to privilege).

ABSOLUTE PRIVILEGE

(SEE ALSO S.351-353 CRIMINAL CODE WA)

Absolute privilege is a complete defence to a claim for defamation. Absolute privilege covers such things as parliamentary proceedings and judicial proceedings.

There are also certain other communications that are privileged, cannot be led as evidence without consent and so cannot be sued on. These include communications between solicitor and client; and communications between high officers of the State in the course of their official duties. (This certainly includes communications of Ministers, enquiries and reports, etc, but it is uncertain how far down the subordinate ladder this privilege extends).

QUALIFIED PRIVILEGE

(SEE ALSO CRIMINAL CODE WA SECTION 357)

The defence of qualified privilege allows free communication in certain relationships without the risk of a defamation action. The relationships which attract this defence are various.

Generally, where the person communicating the defamatory statement has a legal, moral or social duty to make the statement and the recipient has a corresponding interest to receive it, the defence of qualified privilege will be available. Some examples are: giving a reference for a job applicant; answering police enquiries, communications between teacher and parent, between local councillors, officers of companies, employee and employer and so on.

The privileged communication must relate to the business at hand. A relationship which attracts this defence cannot therefore be abused for the purpose of merely relaying gossip.

The defence of qualified privilege is also available to a person defending him or herself from an attack on his or her reputation, so long as what is said is relevant to the defence. It is also available even if what was said was untrue, so long as the required relationship exists.

A defence of qualified privilege can be defeated at common law by proving that the defamer was motivated by malice or improper motive. Malice, if proved, will destroy the protection created by the relationships and situations outlined above.

To prove malice, one generally has to prove that the person making the defamatory statement did not honestly believe in the truth of that statement or made it recklessly, not caring if it was true or false. If a person making the statement honestly believes in its truth, there is no malice, even if the belief is somewhat unreasonable.

The High Court of Australia, in a case concerning the former New Zealand prime minister, David Lange, has declared that a common law defence of qualified privilege also exists in relation to publications concerning government and political matters that affect the Australian people: Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 71 ALJR 818.

This is not limited to comments made in election periods and extends to any publications relevant to the political judgement of electors. This category of qualified privilege is explained as being required for the welfare of Australian society, in that all citizens have an interest in receiving and distributing information concerning government and political matters.

However, this defence of qualified privilege can be defeated by proof of malice, and is also subject to a requirement of reasonableness. The publication of defamatory material will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as were reasonably open, to verify the accuracy of the material and did not believe the imputation of the defamatory material to be untrue. Further, the defendant’s conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any), except in cases where the seeking or publication of a response was not practicable, or it was unnecessary to give the plaintiff an opportunity to respond.

By recognising that receiving and distributing political information is important in Australian society, and by requiring reasonableness to be established by a publisher who invokes this new constitutional defence, the High Court has endeavoured to achieve an appropriate balance between the implied freedom of communication and the need to protect personal reputation.

FAIR REPORTS

(SEE ALSO S.354 WA CRIMINAL CODE)

These are defences created specifically by the WA Criminal Code, but in some areas they overlap with matters that would be classed as privileged at common law. For example, fair and accurate reports of parliamentary proceedings have been covered by the defence of qualified privilege at common law.

The Code lists a number of reports which are privileged. These include:

• fair and accurate reports of judicial proceedings held in public. This only extends to reports per se: any comment upon the substance must be defended as fair comment (see above); and
• fair and accurate reports published in any newspaper of the proceedings of:
– a public meeting;
– any open meeting of a municipal or district council, local council or statutory board;
– a Royal Commission or Parliamentary Select Commission; or
– proceedings of various associations.

APOLOGY

This is not a defence as such to a claim of defamation in WA, but an apology, especially one tendered at an early stage and publicised, will be considered relevant in relation to theassessment of damages, for it may remove the practical effect of the defamatory statement and help to restore the plaintiff’s reputation.

The proposed uniform defamation laws set out a process for making an offer to make amends which, if accepted and performed, may prevent a defamation action from being taken. If it is reasonable and not accepted, then it could be used as a defence to a defamation action.