Defamation – publications from 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.

You can find a copy of the Defamation Act here: Defamation Act 2005(Qld).

If the defamatory matter was published before 1 July 2021, the previous version of the Defamation Act will apply. See this factsheet for information about the law that applies to defamatory matters published before 1 July 2021.

Who can sue for defamation?

Under the Defamation Act, the following can bring an action for defamation:

• • 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 sets out the time limits for bringing an action in defamation.

Generally, court proceedings for an action in defamation must be brought within 1 year from the date of the publication. Where there have been multiple publications made by the same defendant (or their employees, contractors or associated entities) that are substantially the same, this 1-year limit runs from the date of the first publication.

However, before a person can start court proceedings, they must give the proposed defendant a concerns notice under the Defamation Act and allow 28 days for the proposed defendant to make an offer to make amends.

If the person gives their concerns notice to the potential defendant within the 56 days before the 1-year limit expires, then the time limit for bringing court proceedings will be extended so that it expires 56 days after the day the concerns notice is given. Concerns notices and offers to make amends are further discussed below.

---

Example: Billy publishes a defamatory post about Dominic on 15 June 2022. Dominic’s limitation period to start defamation proceedings will normally expire on 15 June 2023. Dominic gives Billy a concerns notice about the post on 1 June 2023. Dominic’s limitation period will now expire on 27 July 2023, 56 days after he gave Billy the concerns notice.

The court can extend the 1-year time limit to a period of up to 3 years if the plaintiff satisfies the court that it is just and reasonable to allow the court action to proceed. When deciding this, the court will take into account all of the circumstances of the case, including the length of the delay, the plaintiff’s reasons for the delay, and what actions the plaintiff took when they first found out about the potential defamatory matter.

Elements of civil defamation – Defamation Act 2005

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

1. 1. 1. Publication;
      2. Identification;
      3. Defamatory matter; and
      4. Serious harm.

The first three elements are defined by the common law, or the body of “judge-made” law that has been developed through cases decided by the courts. The last element, serious harm, is defined in the Defamation Act.

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, so 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 specifically 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. 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.

4. Serious harm

The plaintiff must be able to show that the publication of the defamatory matter has caused, or is likely to cause, serious harm to their reputation.

The serious harm element was introduced on 1 July 2021, so it is not yet clear how the courts will interpret the meaning of ‘serious harm’. However, the Defamation Act makes it clear that if the plaintiff is a corporation, ‘serious harm’ means serious financial loss.

The court can make a decision about whether or not the serious harm element is established at any time during the court proceedings, and can make any orders the court considers appropriate. This includes dismissing the proceedings if the court is satisfied that the serious harm element is not established.

A party to the court proceedings can apply to the court to ask that this question be determined before the trial of the matter. If they apply for the question to be determined before the trial for the proceedings, the court must decide the issue as soon as possible before the trial starts, unless the court is satisfied that there are special circumstances that justify postponing the decision to a later stage of the proceedings.

Resolution of defamation disputes without litigation

Part 3 of the Defamation Act contains provisions regarding the resolution of civil disputes without 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.

Concerns notices

Before a person can commence proceedings for defamation, they must first give the proposed defendant (the publisher) a concerns notice and wait for a specific period of time to allow time for the proposed defendant to make an offer to make amends.

A concerns notice is not a court document. A person giving a concerns notice cannot simply give the proposed defendant a copy of the claim and statement of claim they want to file and say that it is a concerns notice.

A concerns notice must:

• • be in writing;
  • specify the location where the publication can be accessed (e.g. a website address);
  • inform the publisher of the defamatory imputations that the aggrieved person considers are or may be carried about them by the publication;
  • inform the publisher of the harm that the person considers to be serious harm to the person’s reputation that was caused or is likely to be caused by the publication;
  • where the aggrieved person is a corporation – also inform the publisher of the financial loss the corporation considers to be serious financial loss that was caused or is likely to be caused by the publication; and
  • if possible, include a copy of the relevant publication.

If the concerns notice does not adequately set out the information required above, the recipient can give the aggrieved person a written notice (a further particulars notice) asking that they provide reasonable further particulars (i.e. additional factual details) about the information concerned. The further particulars notice needs to specify the information being sought.

The aggrieved person must then provide the further particulars within 14 days of being given the notice, unless the parties agree to a longer period. If they don’t provide the information within this period, they are taken not to have given the publisher a concerns notice under the Defamation Act.

A person cannot commence proceedings for defamation unless:

• • the person has given the proposed defendant a concerns notice about the relevant matter;
  • the imputations to be relied on by the person in the proposed court proceedings were particularised in the concerns notice; and
  • the applicable period for an offer to make amends has elapsed.

The applicable period for an offer to make amends is normally 28 days since the publisher was given a concerns notice. The exception is where the aggrieved person gave further particulars to the publisher in response to a further particulars notice more than 14 days after the concerns notice was given to the publisher: in that case, the applicable period will be 14 days since the publisher was given the further particulars.

---

Example: Julie sent a defamatory email about Sandy on 1 June 2022.  Sandy gave Julie a concerns notice on 3 June 2022.  Julie would normally have 28 days to make an offer to make amends (i.e. until 1 July 2022).  Julie sends Sandy a further particulars notice on 6 June 2022, and Sandy gives her the further particulars on 20 June 2022.  Since this is more than 14 days after Sandy gave Julie the concerns notice, Julie now has until 4 July 2022 to make an offer to make amends, and Sandy can’t start defamation proceedings against Julie until after 4 July 2022.

---

The court can grant leave for the plaintiff to start proceedings before the applicable period has elapsed, but only if the plaintiff satisfies the court that:

• • if they started the proceedings after the end of the applicable period, they would be out of time under the Limitation of Actions Act 1974 because the court would not have the power to extend the limitation period to that date; and
  • it is just and reasonable for the court to grant leave.

Offers to make amends

The publisher may make an offer to make amends to the aggrieved person under Division 1, Part 3 of the Defamation Act, to try to resolve the matter without the need for further legal proceedings. One of the benefits of making an offer to make amends under the Defamation Act is that it can in some circumstances provide a publisher with a defence to a defamation action.

An offer to make amends under the Defamation Act must be made:

• • within 28 days of the publisher being given a concerns notice; or
  • if the aggrieved person gave further particulars to the publisher in response to a further particulars notice more than 14 days after the concerns notice was given – then within 14 days of the date the further particulars were given; or
  • before a defence has been served in the court proceedings.

The 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;
  • be open for acceptance for at least 28 days from the date the offer is made;
  • 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, or a clarification of or additional information about, 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 for considering the offer.

The offer to make amends can include any other kind of offer the publisher wants to make, such as an offer to publish an apology, an offer to remove the matter from a website, or an offer to pay compensation.

An offer to make amends is taken to have been made without prejudice unless stated otherwise, which means that the contents of the offer to make amends cannot be put before the court hearing the case.

The effect of accepting an offer to make amends is that the aggrieved person is prohibited from asserting, continuing or enforcing 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 by the aggrieved person, 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 being given a concerns notice and within the applicable period for offers to make amends;
  • 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.

When deciding whether an offer to make amends was reasonable, the court has to consider any correction or apology published before the trial, including the extent to which that correction or apology is brought to the attention of the audience of the matter in question. The court can also consider any other matter it considers relevant.

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.

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. Justification;
      2. Contextual truth;
      3. Absolute privilege;
      4. Publication of public documents;
      5. Fair report of proceedings of public concern
      6. Public interest;
      7. Qualified privilege;
      8. Scientific or academic peer review;
      9. Honest opinion; and
      10. Innocent dissemination.

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 imputations 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 matter if the defendant can prove that:

• • the matter carried 1 or more imputations that are substantially true (the contextual imputations); and
  • any defamatory imputations of which the plaintiff complains do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

The contextual imputations on which the defendant may rely on to establish this defence includes imputations complained of by the plaintiff.

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.

Public interest: section 29A of the Defamation Act

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

• • the matter concerns an issue of public interest; and
  • they reasonably believed that the publication of the matter was in the public interest.

All of the circumstances of the case must be taken into account in determining whether this defence has been made out. Where applicable, a jury (and not the judge) will determine whether the defence has been established.

The Act provides some factors which may be taken into consideration when determining whether the defence has been established. The main question is whether the defendant’s belief that the publication of the matter was in the public interest was ‘reasonable’, and the factors are not exhaustive or a ‘checklist’. The factors include:

• • the seriousness of any defamatory imputation carried by the matter published;
  • the extent to which the matter published distinguishes between suspicions, allegations and proven facts;
  • the extent to which the matter published relates to the performance of the public functions or activities of the person;
  • whether it was in the public interest in the circumstances for the matter to be published expeditiously;
  • the sources of the information in the matter published, including the integrity of the sources;
  • if a source of the information in the matter published is a person whose identity is being kept confidential, whether there is good reason for the person’s identity to be kept confidential (including, for example, to comply with an applicable professional code or standard);
  • whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person;
  • any other steps taken to verify the information in the matter published;
  • the importance of freedom of expression in the discussion of issues of public interest.

This defence was introduced on 1 July 2021, so it is not yet clear how the courts will decide whether a defendant ‘reasonably believed’ that the publication of a matter was in the public interest. However, the defence does not appear to be restricted to journalists.

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.

When working out whether the defendant’s conduct is reasonable, the court can take into account a number of factors, including:

• • the seriousness of any defamatory imputation in the publication;
  • the extent to which the matter distinguishes between suspicions, allegations and proven facts;
  • the nature of the defendant’s business environment;
  • whether it was appropriate in the circumstances for the matter to be published expeditiously;
  • any other steps taken to verify the information in the publication.

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.

Scientific of academic peer review: section 30A of the Defamation Act

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

• • the matter was published in a scientific or academic journal; and
  • the matter relates to a scientific or academic issue; and
  • an independent review of the matter’s scientific or academic merit was carried out before the matter was published in the journal by:
    • the editor of the journal (if the editor has expertise in the scientific or academic issue concerned); or
    • 1 or more persons with expertise in the scientific or academic issue concerned.

This defence was introduced on 1 July 2021, so it is not clear yet how the courts will approach its interpretation. For example, it is uncertain what threshold the courts will adopt when determining whether a matter has been published in a ‘scientific or academic journal’. However, the Defamation Act requires that there be an independent review of the matter’s scientific or academic merit by a person with expertise in the issue concerned before its publication. The journal must therefore be at least recognised or regarded by persons with expertise in the scientific or academic community.

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.

This defence was amended on 1 July 2021 to provide more details and clarity about when an opinion is considered to be “based on proper material”.

An opinion is based on proper material if the material the opinion is based on is:

• • set out in specific or general terms in the publication; or
  • notorious; or
  • accessible from a reference, link or other access point included in the publication (e.g. a hyperlink); or
  • otherwise apparent from the context of the publication.

The material the opinion is based on must also be:

• • substantially true; or
  • published on an occasion of qualified privilege; or
  • published on an occasion where the defences of publication of public documents or fair report of proceedings of public concern would apply.

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.

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.

Litigation

A claim for defamation may be lodged in either the 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 or defendant in defamation proceedings may elect for the proceedings to be tried by jury, unless the court orders otherwise. The court may order that the proceedings not be tried by jury if the trial requires a prolonged examination of records, or involves any technical, scientific or other issue that cannot be conveniently considered and resolved by a jury.

Once a party has elected for the proceedings to be tried by jury, it can only be revoked with the consent of all the parties or with the leave of the court.

The jury will determine whether the defendant has published defamatory matter about the plaintiff and, if so, whether any defence has been established. The judge will determine whether the publication has caused the plaintiff serious harm, and whether the offer to make amends defence has been established.

If the jury determines that there has been a defamatory publication about the plaintiff and that no defence applies, then it is for the judge to determine the amount of damages to be awarded to the plaintiff.

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 court can only award the maximum damages amount in a most serious case.

The court also has the ability to award aggravated damages, which is a special category of compensatory damages that is calculated separately from damages for non-economic loss. The court will only award aggravated damages in circumstances where the defendant’s conduct was improper, unjustifiable, or lacking in bona fides (i.e. not genuine or in good faith) such that it increased the harm suffered by the plaintiff.

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)