The Law Handbook 2024

Chapter 11.2: Defamation and your rights 1011 must prove that the defamatory imputations or meanings are true (while the plaintiff – i.e. the person who claims to have been defamed – does not have to prove they are false). Further, the defendant must prove that the imputations conveyed by the words (not simply the words themselves) are true. Thus, using our example, the defendant needs to prove that the imputation that Mr X is a bigamist is true. It is not enough to simply prove that the words used (i.e. that Mr X got married last Sunday) are true. Under the uniform defamation laws, truth alone is a complete defence. Therefore, it is not necessary for a defendant to prove that the publication related to a matter of public interest or public benefit. Absolute privilege In some situations, freedom of communication is considered to be so important that the participants are completely protected frombeing liable for defamation. Absolute privilege is recognised by the common law and by section 27 of the Defamation Act. Anything said or done by members of parliament in the course of parliamentary proceedings is ‘absolutely privileged’. This means no action for defamation can be brought, even if the person who makes the defamatory statement knows it was false and made the statement with the intention to damage the affected person’s reputation. Absolute privilege also covers the broadcast of parliamentary proceedings, documents tabled in parliament, and official reports of parliamentary proceedings (i.e. Hansard and unedited re-publications of it). Similarly, all statements made in the course of court proceedings by judges, jurors, barristers, witnesses and parties are absolutely privileged. This includes statements contained in documents used in the course of legal proceedings (but not the publication of these documents outside court). Absolute privilege applies to tribunals that operate like courts. However, it does not apply to purely administrative bodies, such as licensing authorities. The Public Interest Disclosures Act 2012 (Vic) confers absolute privilege on disclosures, made on reasonable grounds,thatapublicbodyorpublicofficerhasengaged in, or proposes to engage in, improper conduct. The disclosure must be made to the appropriate person, as set out in section 13 of that Act. There are other communications that may be absolutely privileged, such as communications between a solicitor and client, and communications between government ministers. However, the law in this area is complex; if it appears to be relevant, a lawyer specialising in defamation should be consulted. The defence of absolute privilege may also be affected by stage 2 of defamation law reform. For more information about this, see Model Defamation Amendment (Absolute Privilege) Provisions 2023 (www.pcc.gov.au) . It is expected that legislative provisions affecting these matters may commence in 2024. Qualified privilege In many situations (see the list below) it is in the interests of society that people can communicate frankly with each other, without fear of being sued for defamation. The defence of ‘qualified privilege’ protects honest communication in such situations. Qualified privilege is recognised by the common law and by the Defamation Act. The Defamation Act does not affect the common law defence of qualified privilege. In situations protected by qualified privilege, a plaintiff can only successfully sue for defamation by proving that the defendant was motivated by malice in making the defamatory statement. ‘Malice’ means that the defamatory statement was made for some ulterior purpose and was not the ‘honest communication’ that qualified privilege is intended to protect. The existence of malice may be inferred by showing that the defendant knew the imputations or meanings of their statement were not true (or did not care if they were true or false). This is because a person who knowingly makes a statement with false imputations is unlikely to have a proper purpose. The defendant’s negligence in not checking the truth of their statement does not amount to malice, unless such negligence amounts to reckless indifference to the truth. Intending to cause harm to someone is an ‘improper purpose’ and is therefore usually considered to be malicious. However, this is not always the case, especially in political speech where qualified privilege exists between a person commenting on candidates and the electors; making a statement with the intention to damage a candidate’s chances of being elected is considered a proper purpose. Many situations are covered by qualified privilege (they are too numerous to list them all); they include: 1 Statements made by a person under a legal or moral duty to another person. The second