BLAW10002 Lecture Notes - Lecture 5: Defamation Act, Actual Malice, First Amendment To The United States Constitution
14 May 2018
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Defamation Law: Defences
Defamatory imputations
•The plaintiff will allege that the matter contains one or more ‘defamatory imputations’
-The plaintiff’s meaning of the comments
•The defendant, to be received of liability, must provide a defence to each and every
defamatory imputation found to have arise from the matter
•US - must prove actual malice in order to sue
•Defences available in Australia under:
-Statute - Defamation Act 2005 (Vic) (p.113-121); and/or
-Common law.
Truth (s.25)
•Common law (technically known as “justification”)
•What is the rationale for the truth defence?
-defamation law protects reputation
-aligns actual character with reputation - prevents false reputation
-also has free speech dimensions - important to be able to speak the truth
•Note: prior law in NSW ,ACT, QLD and TAS required truth plus public benefit or public interest
in the publication of the allegations
-provided a degree of protection for privacy (no privacy cause of action in Australia)
-now no privacy defence for defamation
•Substantial truth is required
-“Substance of the sting”
•This means that minor inaccuracies will not defeat the defence
Contextual truth (s.26)
•It is a defence to the publication of defamatory matter if the defendant proves that:
(a) the matter carried, in addition to the defamatory imputations of which the plaintiff
complains, one or more other imputations (‘contextual imputations’) that are
substantially true; and
(b) the defamatory imputations do not further harm the reputation of the plaintiff because of
the substantial truth of the contextual imputations
•If there is a relatively minor imputation that is proven false, it can be defended that is
irrelevant as there is a more major imputation that has been proven true
•Idea that imputation is so minor that it can be no more detrimental due to the truth of a more
serious imputation
•Example: person claiming defamation of being accused on a murder and committing adultery
-If true that they a murder, but false of committing adultery - defence available for adultery
as it is minor in comparison to murder.
-Reputation is already sufficiently damaged
Absolute privilege (s.27)
•Common law defence for:
-statements made in parliament
-statements made in court
•What makes the privilege absolute - cannot be defeated by malice
•Extended by statute s27
•Absolute privilege is of no use to the media
Document Summary
Defamatory imputations: the plaintiff will allege that the matter contains one or more defamatory imputations". Statute - defamation act 2005 (vic) (p. 113-121); and/or. Aligns actual character with reputation - prevents false reputation. Also has free speech dimensions - important to be able to speak the truth: note: prior law in nsw ,act, qld and tas required truth plus public bene t or public interest in the publication of the allegations. Provided a degree of protection for privacy (no privacy cause of action in australia) Now no privacy defence for defamation: substantial truth is required. Substance of the sting : this means that minor inaccuracies will not defeat the defence. If true that they a murder, but false of committing adultery - defence available for adultery as it is minor in comparison to murder. Absolute privilege (s. 27: common law defence for:
