TOPIC 2 - DEFAMATION DEFENCES AND DAMAGES
Substantial truth (Justification): S25 Defamation Act 2005 (Vic)
• Is a defence to the publication of defamatory matter if D proves that the defamatory imputations carried by the matter of which P complains are substantially true
• The onus rests on the D to prove that the material published is 'true in substances or not materially different from the truth' (definition of 'substantially true')
• If the imputations are separate & distinct, D must separately establish substantial truth in each of them.
However, if they have a 'common sting', D is entitled to assert the truth of the collective imputation by way of justification - rule derived from Polly Peck plc v Trelford [1986] QB 100
• No need to prove there was a public interest
• P can't claim defamation if statements are substantially true bc the publication doesn’t lower their reputation, it merely readjusts it down to its proper level
Effect of Polly Peck case:
o Effect is that at common law - P is permitted to 'cherry pick' those imputations that they want to sue, only if they're distinct and severable
o This means P can choose to sue only some defamatory imputations conveyed by the publication which can't be justified & ignore more serious imputations which can be justified
Collective/Severable imputations
o Where there are two or more 'stings', it can be considered collective or severable
o E.g. imputing that party member ratted on the party and betrayed party leader - same sting of disloyalty and treachery
Contextual truth: S26 DA
• This defence prevents P from choosing which defamatory imputations to sue - it provides proof that those imputations pleaded by P are substantially true
Objective
o Prevent P from avoiding serious stings in defamatory matter by selective pleading: Fairfax Media Publications Pty Ltd v Zeccola [2015] NSWCA 329 at [70]
o It's so that you can bring more evidence into it to prove D's imputations by referring to more resources and events
Elements
• Matter conveys an additional contextual imputation that's substantially true; and
• Imputations of which P complains don't further harm P's reputation bc of the substantial truth of the contextual imputation
When to use this defence
o Only time you'd use this defence is when the facts of the problem question specifically state that P had chosen to sue on some but not all of available imputations
McLachlan v Browne (No 7) [2018] NSWSC 1914 Facts
o Craig McLachlan sued in defamation in respect of allegations in a newspaper article & in the ABC 7:30 Report that he had indecently assaulted and sexually harassed female staff embers of the 2014 production of the Rocky Horror Show
o Imputations pleaded were specific to events which were alleged to have occurred during that specific production
o D sought leave to plead additional, contextual imputations on the ground that the publications weren't just about the 2014 Rocky Horror Show but also covered other conduct of similar nature
Held
o Justice McCallum gave leave for D to plead a contextual imputation that P is a sexual predator bc he indecently assaulted & sexually harassed female colleagues in the workplace
Significance
o Allowed D to bring in evidence of similar behaviour on other television/theatre productions, &
wasn't just restricted to Rocky Horror Show to justify their imputations
Honest opinion ('Fair comment' at common law): S31 DA
• Protects statements of opinion that are honestly held by D
Objective
o To protect commentary, opinion, analysis, editorials and critical reviews on matters of public interest that are honestly held
o E.g. reviews in art, theatre, book, film, restaurant
Elements
• Matter is an expression of opinion of D rather than a statement of fact;
When is the matter an expression of opinion?
• A statement is more likely to be considered opinion and not fact if D has clearly identified the facts on which that opinion is based: Channel 7 Adelaide Pty Ltd v Manock (2007) 231 CLR 245
Considerations
• Context & language: a news story vs. an opinion piece commenting on the news story
• Identified or identifiable factual basis for the opinion
▪ Facts must either be stated in the publication or they must be sufficiently indicated by the publication in order for opinion to be construed from fact
▪ Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 109: indicate that an expression of opinion w/o reference to the facts on which that opinion is based won't fall within the terms of the defence anyway bc s31(1)© requires that the opinion must be based on proper material
• Opinion related to a matter of public interest; and
What constitutes 'public interest'?
• Political matters: e.g. public conduct & views of politicians
• Matters of public & governmental admin
• Activities of large corporations
• Matters relating to sport & the conduct of sportspersons
• Other matters of community concern: e.g. environmental concerns, animal welfare matters, consumer welfare issues: Orion Pet Products v RSPCA (2002) 120 FCR 191
• Merit of literary & artistic works
• Opinion is based on proper material
What constitutes 'proper material'? S31(5) DA i. Must be substantially true; or
ii. Was published on an occasion of absolute/ qualified privilege (whether under this Act or at general law); or
iii. Was published on an occasion that attracted the protection of a defence under this section or s28 or 29
o An opinion doesn't cease to be based on proper material only bc some of the material that it's based on isn't proper material - it is acceptable that only some of the material is reasonably based on proper material S31(6) DA