In Victoria, truth (technically, ‘justification’) has always been a complete (1) A defendant’s response to the legal claims made against them in court by a prosecutor or plaintiff. (2) A lawful excuse for conduct: for example, causing minor injuries to someone while saving them from certain death. (3) ‘The defence’ is also a way of referring to the defendant and their legal team. to a To damage another person’s reputation by publishing or communicating false statements about them. The old common law distinction between libel (written and published defamation) and slander (spoken defamation) no longer has any legal significance. action. For this defence to succeed, the A person who has been charged with a criminal offence or against whom a civil action has been brought. must prove that the defamatory imputations or meanings are true (while the A person who begins a civil action against another person. – 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.
In some situations, freedom of communication is considered to be so important that the participants are completely protected from being liable for defamation. The protection given to parliamentary and court proceedings so that any information produced or revealed in them cannot be used as the basis for a defamation lawsuit. See also defence; qualified privilege. is recognised by the (1) The system of law developed by the English courts through precedent and adopted in ‘common law countries’ in the British Commonwealth (as opposed to Roman law (civil law) or ecclesiastical law). (2) The case law made by judges in that system. (3) Case law that is not part of the law of equity. (4) Historically, the rules of law common to all people in England, as distinct from local or customary laws. and by section 27 of the Defamation A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation..
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 An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. 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 Protected Providing information to another person or institution as required by a contract or other legal process. Act 2012 (Vic) confers absolute privilege on disclosures, made on reasonable grounds, that a public body or A person appointed to act on behalf of a company or an incorporated association in any public dealings. has engaged in, or proposes to engage in, improper conduct. The disclosure must be made to the appropriate person, as set out in section 6 of that Act.
There are other communications that may be absolutely privileged, such as communications between a A legal practitioner (lawyer) who sees clients and opens files to deal with their legal matters but usually does not appear in court. See also barrister. 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.
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. A defence that gives protection against a defamation lawsuit. It can be used if information was not given to cause harm, and was given to someone who had a public interest in getting it and who acted reasonably when they published it. See also absolute privilege. is recognised by the common law and by the Defamation Act. The Defamation Act does not affect the An answer to a criminal charge or other wrongdoing, based on a precedent that has developed from decisions in court cases, rather than being set out in legislation (a statutory defence). of qualified privilege. In situations protected by qualified privilege, a plaintiff can only successfully To take legal action in a civil case. for defamation by proving that the defendant was motivated by A desire to cause harm to someone, in a criminal act of by defamation. 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 An act that breaches a duty to take reasonable care and results in loss or damage to another person. See also tort. 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 (there are too numerous to list them all); they include:
- Statements made by a person under a legal or moral duty to another person. The second person must have a legitimate interest in receiving the communication. Examples include information given to police concerning a suspected A criminal act prohibited by state or commonwealth criminal law. An offence is either a summary offence (minor) or an indictable offence (serious)., or information provided by one employer to another about the character of a person who the recipient of the information may employ.
- Statements made to further a legitimate common interest. Examples include communication between an employer and their employee (or between two employees) concerning the running of the business; discussions between committee members about the committee’s work; and communication between members of a trade union and its officials on industrial matters. Only in unusual cases (e.g. public safety warnings), and cases concerning political matters (see point 5, below), A document that sets out what a person wants to happen to their money and other property after they die. publication in a newspaper or on television be protected by qualified privilege. This is because it is very rare that the public as a whole has a legitimate interest in receiving the communication. However, a newspaper circulated to a limited readership (e.g. a trade union journal) may be covered by qualified privilege.
- Protection of a legitimate interest. If, for example, a person’s reputation has been attacked in public, their reply to that attack is protected by qualified privilege. Similarly, a response to an attack upon one’s employer is privileged.
- Fair reporting on public proceedings. Qualified privilege applies to fair and accurate reports of parliamentary or judicial proceedings, including reports based on parliamentary or court documents, because such reporting is viewed as being in the public interest. The Defamation Act also provides Found in a statute of delegated legislation. For example, a statutory authority or body is aperson or organisation that has special powers given by parliament to do work for the public benefit. defences for the publication of public documents (s 28) and for the fair reporting of proceedings of public concern (s 29).
- Discussion of government and political matters. Every Australian has an interest in disseminating and receiving information, opinions and arguments about the government and about political matters that affect Australians. When a defamatory statement is made to a wide audience (but not to electors in a single electorate), the publication must be reasonable. This usually means that the publisher must show that they had reasonable grounds for believing the statement to be true, took proper steps to verify it and, where possible, included a response from the person defamed.
- Reasonable publication. The Defamation Act (s 30) contains a form of qualified privilege for publications made to the general public where the publisher’s conduct is ‘reasonable’. Whether conduct is reasonable is determined in accordance with factors set out in the Act.
The common law defence of ‘fair comment’ applies to comments/opinions expressed about matters of public interest. The name of this defence is misleading as the comment does not need to be fair (i.e. it doesn’t need to be reasonable or just). It only needs to be an opinion that a person, however prejudiced, could honestly hold. A person may publish any comment/opinion to the world Having escaped from control, for example, person who has committed a serious offence and has not yet been captured, or who has escaped from legal custody. Animals at large have escaped from secure confinement on their owner’s property., even if the meanings conveyed are defamatory and false, provided that:
- the comment concerns a matter of public interest. This includes comments about the government, the administration of public services and institutions, and matters submitted to public criticism (e.g. books, plays, concerts and films);
- the defamatory imputation is understood (by those to whom it is published) to be a comment (i.e. an opinion, not a statement of fact). Statements of fact are not protected by the fair comment defence and must either be proved to be true, or be protected by absolute or qualified privilege;
- the defamatory imputation conveyed by the comment is based on facts that are true and which were either set out, or sufficiently referred to, in the publication, or which are notorious.
Like qualified privilege, the defence of fair comment can be defeated if the plaintiff can establish that the defendant made the defamatory comment maliciously. In the context of fair comment, ‘malice’ means that the publisher did not honestly hold the opinion that was published.
The Defamation Act (s 31) provides a defence of ‘honest opinion’ that is similar to the common law fair comment defence. Just as with the common law, the Protection against being sued that is stated in legislation. The defence stops a person being found liable in court. For example, a person who is giving evidence in court is can say things would be defamation if they said it anywhere else. can only be defeated if a plaintiff can establish that the opinion was not honestly held by the defendant. The statutory defence also protects publishers who publish the opinions of third parties (e.g. callers to talkback radio and letters to editors).