Defamation Defences: 7 Defences available to Defendant






1. Justification or Truth – Must show facts!


     a. Defendant must prove truth of statement – Not Easy!


     b. These are not valid defences:


          i. Honest belief in Statement


          ii. Honest belief in Source


          iii. Honest belief in Circumstance






2. Fair Comment – The most popular defence (Freedom of Speech)


     a. Sting must be a comment, not a fact


     b. Comment is objective


     c. Comment is based on fact (Factual Basis) – Test: “Ordinary, Reasonable, Right-Thinking people”


     d. Public Interest *


     e. No Malice **






3. Qualified Privilege


     a. Shared Common Interest


          i. Confidentiality is NOT Qualified Privilege


     b. Social, Legal, Moral Duty * (Does media have a duty?)


     c. Reports of Proceedings


     d. No Malice **






4. Statutory Privilege


     a. Only Newspapers & Broadcasters have Statutory Privilege


     b. The report is listed in the Schedule *


     c. No blasphemous, seditious, indecent, or illegal material


     d. Must be for public concern and public benefit


     e. No Malice **


Absolute Privilege


     f. Applies to certain situations where a person should have the right to speak frankly without fear of reprisal


          i. In Court – Witness Statements, From one Lawyer to another, From Lawyer to Client, etc.


          ii. In the Course of Duty – From one public officer to another


          iii. In Parliament


     g. No blasphemous, seditious, indecent, or illegal material


     h. No Malice *






5. Innocent Publication


     a. Applies only to publisher – The 3rd Party


     b. Exercised reasonable care in relation to publication – Checking facts, etc.


     c. No knowledge of contents of “Sting”, or who they referred to


     d. Nothing about the publication looks like a “Sting” on the surface


     e. Must make an Offer of Amends – Publish a sufficient apology, Retract all defamatory material, Inform all distributors about the error


     f. No Malice *






6. Innocent Dissemination


     a. Applies to all who “assisted” in publication of a “sting” – Distributors


     b. Exercised reasonable care in relation to distribution of publication


     c. No knowledge of contents of “Sting”, or who they referred to


     d. Nothing about the publication looks like a “Sting” on the surface


     e. No Malice *






7. Consent


     a. Plaintiff gave Defendant permission to publish the “Sting”


     b. Defendant must prove this took place – Written consent, on video or audio, photo, etc.

What is Defamation? - Defamation damages a person’s reputation.






2 Forms:


Libel (Permanent Form) – Print, Film, Video, Audio, Picture, Internet, Email


Slander (Transient Form) – Oral, Gesture, Style of Delivery, Tone, Body Language


Special Damage Rule for Slander: Monetary Loss, not hurt feelings, except imputing criminal offence, disease, adultery, professionalism








Defamation Criteria: 3 Elements – ALL MUST BE PRESENT!




1. Word / Statement must be defamatory


     a. Has a “Sting” – Defamatory Meaning


     b. Viewed as defamatory by “Ordinary, Reasonable, Right-Thinking people”


     c. Socially recognised as a “Sting”


     d. Expressions can also be a form of defamation


     e. False / Legal “Innuendo” can also be a “Sting”








2. Plaintiff is identified


     a. Plaintiff need not be named, just referenced


     b. Difficult for a group to sue, unless each is identified






3. Defamation is “published” to another person (3rd Party)


     a. 3rd Party understands the language in which defamation was used


     b. 3rd Party must be identified by Plaintiff


     c. Exact words of “Sting” are pin-pointed






Note: Societal Attitudes change over time

Word Riddle


What is a word made up of 4 letters, yet is also made up of 3. Although is written with 8 letters, and then with 4. Rarely consists of 6, and never is written with 5?




























What, Yet, Although, Then, Rarely, Never 


Lol...




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