Defamation – publications before 1 July 2021

Defamation law in Australia

In Australia, all the States and Territories have defamation legislation that is substantially the same, which means that defamation law is mostly consistent across the country.

The courts in each State and Territory as well as the Federal Court of Australia have jurisdiction to hear defamation matters.  This means that, depending on the circumstances of a particular matter, a person might be able to choose which court to start defamation proceedings in. There might be specific practical or strategic reasons why a plaintiff would choose to start proceedings in a particular court, especially because different procedural rules apply in different courts. If you are considering starting court proceedings and are not sure which court you should start your proceedings in, you should seek legal advice.

This factsheet focuses on Queensland law and court proceedings brought in the Queensland courts.

What is the relevant legislation?

The Defamation Act 2005 (Qld) (Defamation Act) governs the law of defamation in Queensland.

The Defamation Act was amended on 1 July 2021, and the current version of the Defamation Act applies to all actions in defamation where the defamatory matter was published on or after 1 July 2021. See this factsheet for information about the law that applies to defamatory matters published on or after 1 July 2021.

If the defamatory matter was published before 1 July 2021, the previous version of the Defamation Act will apply. This factsheet sets out the law under that version of the Defamation Act.

You can find a copy of the Defamation Act here: Defamation Act 2005 (Qld) (reprint current from 1 January 2016 to 30 June 2021)

Who can sue for defamation?

Under the Defamation Act, the following can be a plaintiff:

• • • A person; or
    • A corporation (that is not a public entity), if it is either:
      • a not for profit organisation; or
      • it employs fewer than 10 people and is not related to another corporation.

A corporation that does not fit the criteria above cannot sue for defamation under the Defamation Act. This limitation was introduced in response to community concern that large corporations were able to use a threat of defamation to suppress legitimate public criticism and debate.

In addition, a person cannot claim defamation or continue an existing action for defamation in relation to the publication of defamatory matter about a deceased person.

Who can be sued for defamation?

Any natural person or legal entity including local governments, companies and incorporated associations may be liable for defamation.

Any person who contributed to the publication may also be held liable, including but not limited to the original author, the publisher, journalists, television and/or radio stations, and the administrator or host of the website where the publication was made.

A person cannot claim defamation or continue an existing action for defamation in relation to a publication that was made by a person who has died since publishing the matter.

Time frame to bring an action

The Limitation of Actions Act 1974 (Qld) (Limitation Act) sets out the time limits for bringing an action in defamation.

Like the Defamation Act, the Limitation Act was amended on 1 July 2021, and the current version of the Limitation Act applies to all actions in defamation where the defamatory material was published on or after 1 July 2021.

If the defamatory material was published before 1 July 2021, the previous version of the Limitation Act will apply. Under that Act, an action in defamation must be brought within 1 year from the date of the publication of the matter complained of. This may be extended to 3 years from the date of publication if the court is satisfied that the action could not reasonably have been commenced within 1 year.

Elements of civil defamation – Defamation Act 2005

The Defamation Act does not define the meaning of the elements of a defamation action. Instead, they are defined by the common law, or the body of “judge-made” law that has been developed through cases decided by the courts.

In order to succeed in a defamation action, the plaintiff needs to satisfy four elements:

1. 1. 1. 1. 1. Publication;
            2. Identification; and
            3. Defamatory matter.

1. Publication

Publication means that the material is made known to a third person other than the person being defamed. Publication can be oral, in writing or in pictures.

Publishing occurs in each place the material is seen or heard, thus every time defamatory matter is repeated to a third person, a separate publication occurs.

2. Identification

The plaintiff must be able to show that the defamatory matter could reasonably be taken to be about them. It is a question of whether an ordinary reasonable person having knowledge of the relevant circumstances would read the material as referring to the plaintiff. This is most easily satisfied when the publication actually names the plaintiff. However, there is no need for the plaintiff to be expressly named. It is enough that the publication is made to persons with knowledge of other facts which would reasonably enable them to identify the plaintiff.

3. Defamatory matter

Whether a matter is defamatory will depend on the circumstances of each individual case.

First, the question is whether the material was capable of conveying the defamatory meaning alleged by the plaintiff to an ordinary person.

If so, then the question is whether an ordinary person would have taken the publication as conveying the meaning alleged by the plaintiff.

In answering these questions, the standard to be applied is what the ordinary reader, listener or viewer would understand or infer from the statement. The audience is taken not to have any special prejudices. The actual intention of the person making the statement is irrelevant.

There are three ways that a statement can convey a defamatory meaning (otherwise known as an imputation):

1. 1. 1. 1. 1. On the natural and ordinary meaning of the words: the meaning coming from a literal reading of the words.
            2. The court may find that the statement is a false innuendo. In other words, there is a secondary meaning which comes from reading between the lines.
            3. The statement may be a true innuendo. This is where the alleged meaning arises from the natural and ordinary meaning of the words being read in light of other facts not mentioned in the publication. The statement must be published to at least one person who knows of other facts.

The defamatory meaning can be directly stated or it can be implied. An implication that arises from another implication is not actionable. This is important in the context of criminal allegations. A statement that somebody is charged with a crime carries the implication that the person is suspected of committing that crime; to conclude that this means the person did in fact commit the crime requires a second implication, and would not be actionable.

It is possible that a single statement may convey several defamatory meanings. However, multiple imputations in the same publication will only give rise to one cause of action. This means that a plaintiff cannot take several actions against a defendant in relation to a single publication.

Defences to civil defamation

There are several defences available under the Defamation Act. It is important for the aggrieved party to consider what, if any, defences may apply, as this may help to determine the likelihood of success in a defamation action and whether it is worthwhile to commence an action.

The defences available under the Defamation Act are:

1. 1. 1. 1. Justification;
         2. Contextual truth;
         3. Absolute privilege;
         4. Publication of public documents;
         5. Fair report of proceedings of public concern
         6. Qualified privilege;
         7. Honest opinion;
         8. Innocent dissemination; and
         9. Triviality.

In addition to these defences, the courts have recognised several defences that arise independently of the Defamation Act. These ‘general law’ defences can be raised as well as the defences under the Defamation Act.

Justification: section 25 of the Defamation Act

It is a defence to the publication of defamatory matter if the defendant proves that the defamatory allegations are substantially true. Substantially true is defined as being “true in substance or not materially different from the truth”.

A defendant is not required to prove the truth of every detail contained in the defamatory matter. Rather, a defendant must prove the truth of every material part of the imputation relied upon by the plaintiff.

Contextual truth: section 26 of the Defamation Act

The defendant will not be liable for the publication of defamatory material if the defendant can prove that:

• • • in addition to the defamatory imputations, the matter contained one or more other imputations that are substantially true (the contextual imputations); and
    • as a result of the substantial truth of the contextual imputations, the plaintiff’s reputation was not further harmed by the defamatory imputations.

Absolute privilege: section 27 of the Defamation Act

If the defamatory material was published on an occasion of absolute privilege, the defendant will not be liable. Occasions of absolute privilege are statements made:

• • • during the course of proceedings of a parliamentary body;
    • during the course of an Australian court/tribunal hearing; and/or
    • on an occasion that, if published in another Australian jurisdiction, would constitute absolute privilege in that jurisdiction.

The rationale for this section is that there are certain occasions where freedom of expression is so important to society (such as the enactment of laws by parliament and the determination of legal issues by courts) that absolute protection should be afforded.

Publication of public documents: section 28 of the Defamation Act

It is a defence if it can be proved that the material in dispute was contained in a public document, or a fair copy, summary or extract from a public document.

A public document includes, but is not limited to, reports by a parliamentary body, a judgment by a court, government documents and records open to the public.

Fair report of proceedings of public concern: section 29 of the Defamation Act

A person will have a defence to the publication of defamatory matter if they prove the matter was, or was contained in, a fair report of any proceedings of public concern. Proceedings of public concern include those of a parliamentary body, international organisations and conferences, international and domestic courts and tribunals, sport/recreation/trade associations, Ombudsman’s reports and other proceedings that are treated as proceedings of public concern.

This defence will be defeated if the plaintiff can prove that the defamatory material was not published honestly to either inform the public nor to advance education.

Qualified privilege: section 30 of the Defamation Act

The defendant will not be liable for the publication of a defamatory matter if they can prove that:

• • • the recipient of the publication 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 defendant in publishing that matter is reasonable in the circumstances.

This protection is qualified because the privilege can be lost if abused or misused. If it is proven that the publication was motivated by malice, the defence will be unsuccessful.

Honest opinion: section 31 of the Defamation Act

The defendant will not be liable for the publication of a defamatory matter if they can prove that:

• • • the matter was an expression of opinion (as opposed to a statement of fact);
    • the opinion related to a matter of public interest; and
    • the opinion is based on proper material.

The opinion is based on proper material if it is substantially true, published on an occasion of qualified privilege, or the defences of publication of public documents or fair report of proceedings of public concern apply to the publication.

If the plaintiff can prove that the opinion was not honestly held at the time of the publication, the defence will be unsuccessful.

Innocent dissemination: section 32 of the Defamation Act

This defence applies where the defamatory publication was disseminated by an employee or agent of a subordinate distributor (i.e. not the author of the matter or first distributor of the matter). The defendant must have been unaware that the publication was defamatory and this lack of knowledge must not have been due to the defendant’s negligence.

This defence is of particular significance to booksellers, newsagents and broadcasters of live programs as they are not the original source of the defamatory publication.

Triviality: section 33 of the Defamation Act

There is a defence to an action where the circumstances of the publication of the defamatory material were such that the plaintiff was unlikely to suffer any harm.

General law defences

In addition to the defences described above, the courts have recognised several defences that arise independently of the Defamation Act. The Defamation Act provides that a party may raise any of these defences to resist an action for defamation. Many of these defences are similar to the defences contained in the Defamation Act, and so do not add much to the available range of defences.

One example of a general law defence is the common law defence of qualified privilege. The defendant will have a defence if they can establish that they had a duty in making the publication, and that those to whom the publication was made had a duty or interest in receiving it. This defence extends to protect publications concerning government or political matters that affect the Australian people, because of the implied freedom of political communication in the Constitution. This means that certain material that is otherwise defamatory may be protected if it is a fair and accurate report of parliamentary or judicial proceedings, or public meetings concerning matters of public interest. The defendant must not believe that the imputation was untrue nor can the publication be actuated by malice.

Resolution of defamation disputes without litigation

Part 3 of the Defamation Act contains provisions regarding the resolution of civil disputes without recourse to litigation. The aim of these provisions is to help people resolve their disputes without having to resort to a court case, which can be time-consuming and expensive.

Division 1 deals with offers to make amends. Division 2 relates to apologies.

Offers to make amends

The person who published the matter in question (the publisher) may make an offer to make amends to the aggrieved person to prevent further legal proceedings from taking place. Promptly correcting a mistake or issuing an apology will aid a defence to a defamation action.

The offer to make amends must be made within 28 days of receiving a “concerns notice” or before serving a defence in the court proceedings.

A concerns notice is a notice in writing of what the aggrieved person considers to be the relevant defamatory material. If a concerns notice is received which inadequately describes the alleged defamatory material, the publisher can issue a “further particulars” notice to request further information. The aggrieved person must reply within 14 days for their concerns notice to remain effective.

An offer to make amends must:

• • • be in writing;
    • be identifiable as an offer to make amends under Division 1, Part 3 of the Defamation Act;
    • if the offer is limited to any particular defamatory imputations – state that the offer is limited and specify the relevant imputations;
    • include an offer to publish, or join in publishing, a reasonable correction of the matter in question;
    • if material containing the potentially defamatory matter has been given to someone else by the publisher or with the publisher’s knowledge – include an offer to take, or join in taking, reasonable steps to tell the other person that the matter is or may be defamatory of the aggrieved person; and
    • include an offer to pay the expenses reasonably incurred by the aggrieved person both before the offer was made and in considering the offer.

The offer to make amends can include any other kind of offer or details the publisher wants to make or include, such as an offer to publish an apology, an offer to pay compensation, or details of any correction or apology made before the date of the offer.

The effect of accepting such an offer is that the aggrieved person cannot assert, continue or enforce any action for defamation against the publisher in relation to the matter in question, even if the offer was limited to particular defamatory imputations.

If an offer to make amends is not accepted, then the publisher has a defence to an action for defamation if they can establish that:

• • • they made the offer as soon as possible after becoming aware that the matter is or may be defamatory;
    • at any time before the trial they were ready and willing, on acceptance of the offer, to carry out the terms of the offer; and
    • in all the circumstances the offer was reasonable.

Apologies

An apology made in connection with any defamatory matter published does not constitute an admission of fault or liability on the publisher’s behalf. Evidence of an apology is not admissible in any civil proceedings as evidence of the fault or liability of the person in connection with that matter. However, apologies are relevant to the mitigation (or lessening) of damages.

Litigation

A claim for defamation may be lodged in either Supreme Court or District Court (depending on the amount of damages being claimed).

A claim for defamation may also be lodged in a Magistrates Court. However, proceedings commenced in a Magistrates Court cannot be tried by jury, and a Magistrates Court cannot grant an injunction.

Trial by jury

A plaintiff in a defamation claim may elect for the proceedings to be tried by jury unless the trial requires a prolonged examination of records or involves any technical, scientific or other issue that can not be conveniently considered and resolved by a jury.

The jury will then determine whether the matter is defamatory and whether any defence has been established. If the jury determines that there has been a defamatory statement and that no defence applies, then it is for the judge to determine the amount of damages.

Damages

The normal remedy for a successful defamation claim is damages. The amount of damages to be awarded is determined by the judge, and must have an appropriate and rational relationship to the harm the plaintiff sustained. There are generally two types of damages awarded in defamation proceedings: compensatory damages, and aggravated damages.

The purpose of compensatory damages is to vindicate the plaintiff’s reputation and compensate the plaintiff for the harm done to their reputation and the hurt and distress caused by the publication. Compensatory damages can include non-economic loss (e.g. compensation for injury to reputation or social damage) or special damages for economic loss (e.g. actual loss of a particular customer, contract or employment, or actual loss of earning capacity). Damages to compensate for non-economic loss are capped. The maximum damages amount is reviewed every year, but as at 1 July 2022 the cap is $443,000. [1]

The cap may be exceeded only if the court considers that the circumstances of the defamation warrant an award of aggravated damages, which are exceptional damages awarded where the defendant’s conduct is improper or unjustifiable.

Exemplary and punitive damages (compensation in excess of the plaintiff’s actual damage to punish the wrongdoer for their reprehensible conduct and deter them from engaging in such conduct in the future) cannot be awarded for defamation.

The amount of damages can be mitigated (reduced) if the defendant can bring evidence that they made an apology to the plaintiff or published a correction, or the plaintiff has already brought proceedings or received damages or compensation for defamation in relation to another publication that had the same meaning or effect as the defamatory matter.

Other relief – common law injunction

The court does have the power to grant an injunction to prevent or restrain the publication of defamatory matter. Injunctions are discretionary remedies and therefore depend on the circumstances of each case. Courts are very reluctant to exercise this discretion, and an injunction will generally only be granted where damages are considered insufficient.

Relevant factors the court will take into account include:

• • • the strength of the plaintiff’s case;
    • the balance of convenience must favour the granting of an injunction (this involves an evaluation of likely prejudice to each side if the injunction was granted); and
    • other factors such as the availability of alternative remedies to the plaintiff, the adequacy of damages as a remedy and any delay on the part of the plaintiff in bringing the application.

Criminal defamation

In certain circumstances, defamation may also be a criminal offence under the Criminal Code Act 1899 (Qld). Criminal defamation occurs when a person publishes defamatory material knowing it to be false, or without having any regard as to whether it is true or false, and in publishing the material intends to cause serious harm to another. The maximum penalty for this offence is three years imprisonment.

However, criminal defamation will not be established if the defendant can show that he or she had a lawful excuse for publishing the defamatory matter. If the defendant can call evidence that one of the civil defences would have been available, had the matter been a civil defamation case, this will be accepted as a lawful excuse.

External Resources

Defamation Act 2005 (Qld) (reprint current from 1 January 2016 to 30 June 2021)

 

[1] Qld Government Gazette Vol 390 (10 June 2022), p147