A Guide to the NSW Defamation Law


Defamation is probably one of the most common crimes many of us will encounter at some point in our lives, especially in the current digital age where it’s common to express our opinions on the numerous social media platforms available. Knowledge of the defamation law is important to everyone in NSW as anyone could be affected by it, not just public figures or journalists. Taking a few minutes to understand how the law works could save you a lot of future headache from dealing with unintended lawsuits.

One important thing to note is that defamation can be both a civil or criminal crime. The bulk of defamation cases fall under civil law, so this article will focus mainly on that.

Civil defamation in the eyes of the law

The definition of civil defamation is clearly stated in the Defamation Act 2005 (NSW), though the majority of civil law cases are interpreted using case law derived from past cases. Under the Defamation Act, there is a case for civil defamation when three criteria are met.

Firstly, there has to be a clearly identifiable publication of the defamatory material. In other words, there has to be a message and it has to be communicated to at least one other person apart from the person being defamed. The message can be either verbal, print or digital.

Secondly, the subject of the message has to be identifiable. A person can only sue for defamation if the message identifies them, either explicitly or implicitly.

Finally, the content of the message has to be of a defamatory nature. This may be the hardest criteria to prove, and the established standard is that the message has to be defamatory to an ordinary, reasonable person.

What counts as defamatory? As established by case law, it can be material that causes a person to be shunned and ostracised by others or something that is detrimental to a person’s personal reputation as considered by right-thinking members of the public. Defamation also occurs when a person’s professional reputation is affected, such as when the defamatory act casts doubts on the person’s skills and capabilities.

When these three criteria are met, a message will then be considered an act of defamation by the standards of NSW law and the case can then be brought to court. At this juncture, it’s important to state what will not count as defamation, even if the three criteria have been met.

As stated in the Defamation Act, the laws do not apply when the act of defamation is directed towards either a dead person or their estate. The defamation law also does not apply to companies with a size of 10 or more employees and who exist for other purposes than profiting — such companies will not be able to sue for defamation.

Even when the three criteria of defamation have been met, defamation cases are often resolved without punishment. This is because there are a grand total of nine defenses one can invoke in court, which covers a broad spectrum of scenarios.

Defenses against Defamation

  • Relating to the content of the message

Two defenses protect a defendant (the person being accused of defamation) when the content of the message is in some form true. The defense of justification is used when the statements are true. The defense of contextual truth is used when the message contains at least one other imputation that is true.

The defense of qualified privilege can work when the message contains information that is in the interest of those receiving it, such as in the case of business or public issues.

The defense of honest opinion is used when the defamatory message is a statement of opinion rather than fact, and it has to be published under qualified privilege or absolute privilege (explained below).

When the defamatory message does not cause significant harm, the defense of triviality can be invoked.

  • Relating to the publication process of the message

The absolute privilege defense protects messages made in a number of circumstances and is a complete defense that will absolve a case of defamation entirely. Messages made in the course of proceedings of a parliamentary body or an Australian court or tribunal fall under this category. This includes messages from official documents, evidence, debates, and judgments.

The public document defense protects those involved in the publication process rather than those who made the statements. As long as the document containing the defamatory statement was published on honest grounds for the sake of informing or educating others, the defense will hold. On the whole, these include documents containing information of a parliamentary or court nature.

The fair reporting defense protects those who reproduced the defamatory statements. The defense can be used when the statement can indeed be found in an earlier publication and is considered a fair summary or report of the statement.

The innocent dissemination defense protects people involved in the publication process who are unaware of the defamatory message.

Other ways of Settling

Apart from using the defenses, there are two other ways in which a defamation case can be settled without any punishment. The first one relates to the time elapsed from the date of publication of the defamatory material. In general, this cannot be longer than a year, though there are exceptions to this rule. The second method of settlement involves settling the dispute outside of court when there is an offer to make amends.

Criminal Defamation

Having discussed civil defamation at length, we now explain criminal defamation. As a criminal, those convicted of criminal defamation face the possibility of imprisonment (of up to 3 years). The definition of criminal defamation is simple, with only two criteria to fulfill: the person committing the defamatory act has to be aware that the information is false and conducts the act with harmful or reckless intent.

While criminal defamation cases are not that frequent, defamation is one of the most common civil crimes and every one of us is susceptible to it. Knowing the law can save you from some hefty lawsuits, so don’t take the law for granted.

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