Defamation litigation

The main remedy is damages, i.e. money. Under the Act the maximum compensatory damages (i.e. damages for hurt to feelings, etc) are $324,000. A court cannot order an apology.

In addition to damages for hurt to feelings and damage to reputation, the Court may award damages for economic loss if such loss can be proven to be causally linked to the defamatory publication.

The defence mown as justification is also commonly mown as the defence of truth.

Under the Act, truth is now a complete defence and the previous public interest requirement needed to make out the defence in NSW is no longer applicable.

However it must be said that as the onus of proof in respect of any defence falls on the publisher or defendant, reliance upon a defence of truth means that the defendant must be able to prove that the matters complained by the plaintiff are substantially true.

It is also requisite that the publisher must justify all defamatory imputations in the publication. So if eight defamatory imputations are pleaded by the plaintiff, the defence requires justification of all of them.

This relates to publications where there are a number of imputations, major and less serious, some of which are proven true and some not proven true. The basis of the defence is that if the imputations which are most serious are proven to be true, the defendant can escape liability in respect of the minor imputations which are not true, because the minor ones do not further injure the plaintiff.

Since the Defamation Act 2005, whether a matter is defamatory (and the defences) are the province of a jury, but damages is the province of a Judge.

Absolute privilege embraces occasions where statements are made such that the publisher or speaker is wholly immune. In other words, there is absolute freedom of speech.

At common law, this includes reports of parliamentary proceedings, proceedings in Courts and most tribunals, communications between spouses, executive communications by persons holding high executive office of state, such as ministers.

Schedule 1 of the Act has an exhaustive list of occasions of absolute privilege (32 of them) under various statutes. Some of them are matters published to or by the New South Wales Crime Commission, matters published to or by the Independent Commission Against Corruption, matters published to or by of the State Parole Authority, Serious Offenders Review Council, matters published to or by the Ombudsman.

A free speech defence was expounded in Langev Australian Broadcasting Corporation (1997), in which the High Court confirmed there was an extended Common Law defence of qualified privilege related to political communication justified by reference to an implied constitutional freedom of a communication, but without needing to resort to the implication of personal rights into the constitution.

A summary of the defence is as follows:

• the communication must be about government or political matters;
• the defendant’s conduct in publishing must have been “reasonable” and in respect of the reasonableness will not be reasonable unless the defendant;
• had reasonable grounds for believing the imputation was true; and
• took proper steps, so far as they were reasonably open, to verify the accuracy of the material; and
• did not believe the imputation to be untrue; and
• had 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

If the plaintiff can prove the defendant used the publication for an improper purpose, then the defence cannot be made out.

In New South Wales categories of public documents which attract this defence have been specified in a schedule to the Act (schedule 2). For example documents relating to special commissions of inquiry i.e. a report to the governor by a commissioner that the Special Commissions of Inquiry Act 1983, or a document produced to the parliamentary committee by the Independent Commission Against Corruption in a private enquiry and subsequently made public attract the defence.

Before you publish you must consider whether the publication is defamatory, whether re-wording or editing it, or leaving out a photo will prevent it from being defamatory. Will you likely or possibly be sued by the subject of the publication? Can you prove the truth of the imputations in the publication? Can you defend it? If you are concerned or not sure, then don’t publish the material. Re-think it, or seek advice. If threatened with a defamation action, then immediately seek legal advice.

The Act also provides a statutory defence of qualified privilege as follows:

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

The test of apparent interest is that if at the time of publication, the publisher believes on reasonable grounds that the person to whom the matter is published had that interest.