Defamation defences in Australia allow individuals and publishers to avoid liability where certain legal justifications apply. The main defences include truth (or justification), honest opinion, qualified privilege and public interest.
Understanding how each defence operates under Australian defamation law is essential for anyone who publishes content. From journalists and bloggers to businesses and social media users, to reduce legal risk and protect freedom of expression.
In this article, our publishing lawyers outline the main defences available to publishers in Australia, when they may apply, and common pitfalls to watch for.
Key Takeaways
Defamation law applies equally to social media users and professional media outlets.
Publishers bear the burden of proof when relying on the truth defence.
Public interest and qualified privilege defences require fairness, verification, and a right of reply.
Early legal review and strong editorial standards are your best protection.
- The #MeToo movement exposed how defamation laws can silence victims and deter media reporting due to commercial risk of legal action.
Primary Defences in Australia Under Defamation Law
Defamation law provides plaintiffs with the opportunity to defend their reputation but also preserves the expression of freedom of speech to protect the public’s interest. Whether you’re a journalist, an editor, or just a single social media user, these defences will help protect you.
For a deeper dive into how defamation law works in Australia, check out our article on understanding the elements of defamation law in Australia.
Here’s how the three main defences apply:
1. The Public Interest Defence
The public interest defence is intended to prevent defamation law from imposing unreasonable restrictions on free expression.
To rely on this defence, a publisher must prove:
The publication concerned a matter of public interest; and
They reasonably believed publishing the material was in the public interest.
The courts consider the following:
Seriousness of the statement
The gravity of the allegation such as claims of criminal behaviour, corruption, or professional misconduct, increases the responsibility on the publisher to ensure the information is accurate.
Separating fact from allegation or suspicion
Publishers should clearly distinguish between what is known as fact and what is presented as allegation or suspicion. Presenting suspicion as fact may weigh heavily against the publisher in court.
Right of reply
The person or organisation being discussed should be given a fair opportunity to respond before the information is published. Major media outlets typically achieve this by directly contacting the relevant party and keeping a record of the attempt, regardless of whether a response is received.
2. The Qualified Privilege Defence
The qualified privilege defence applies when the audience has a legitimate interest in the information and the publisher acted reasonably in sharing it.
This defence is commonly used by journalists, commentators, and individuals posting online, particularly when the audience is entitled to know the information.
Several requirements must be met:
Recipient’s interest
The audience must have a legitimate reason for receiving the information.
Relevance
The content must remain relevant to the audience’s interest and avoid descending into personal attacks or unrelated opinions.
Reasonableness of conduct
Courts will assess the seriousness of the allegations, the steps taken to verify the information, and whether the subject was given a chance to respond.
3. The Truth (Justification) Defence: A Double-Edged Sword
The truth defence, or substantial truth, is frequently described as the strongest protection available to publishers.
It requires the publisher to prove the overall substance of the publication is true, rather than every individual word. However, the burden of proof rests squarely with the publisher.
If successful, it offers complete protection from liability.
However, if evidence is weak or incomplete, the defence fails, leaving the publisher fully exposed.
To learn practical strategies for reducing exposure to legal action, read our guide on managing defamation risk and costs in publishing.
Case Studies: How Australian Courts Apply Defamation Defences
The cases below illustrate how the courts approach these defences in practice and highlight key considerations that Defendants should keep in mind:
Public Interest Defence
In Roberts-Smith v Fairfax Media Publications Pty Ltd (No 41) [2023] FCA 555 (Roberts-Smith) the statements published involved serious allegations of war crimes. Because of the gravity of these statements, Justice Besanko applied a high forensic standard when assessing whether the publishers had met their obligations by considering the reliability of their sources and the extent to which the reporting was corroborated by credible witness testimony and supporting evidence.
As the journalists contacted the plaintiff for comment and included parts of his response, Justice Besanko concluded that the publishers satisfied the heavy burden imposed on them and that the defamatory statements were substantially true.
While strong evidence and robust editorial process can justify publication of even the gravest allegations, unverified and careless accusations, especially online, are unlikely to attract public interest protection.
This can be seen in Kabbabe v Google LLC [2020] FCA 126. A Melbourne dentist sued over an anonymous Google review in which the writer accused him of being a scammer and unprofessional. The review carried no checks, no balance, and no serious attempt at verification which is a far cry from the rigorous standards in Roberts-Smith. The court, as a result, formed the view that the unverified accusation caused real reputational harm and did not meet the threshold of public interest journalism.
The Qualified Privilege Defence
In Harbour Radio Pty Ltd v Trad [2012] HCA 44 (Harbour Radio), a radio station broadcast remarks about a community leader. The audience arguably had an interest in receiving the information, but the High Court held the defence of qualified privilege failed.
This was because the broadcast did not fairly capture the context of the leader’s original comments, and crucially, no attempt was made to give him a chance to respond.
To contrast, in Papaconstuntinos v Holmes à Court [2012] HCA 53, the High Court considered an email circulated by Holmes à Court to a group of business associates. The email contained defamatory statements about the plaintiff’s conduct in a commercial setting.
The Court upheld qualified privilege because:
- the recipients had a genuine interest in the information for business reasons
- the email was confined to that interest, and
- the defendant’s conduct in publishing it was found to be reasonable
The contrasting cases demonstrate that qualified privilege is not a shield for careless or one-sided reporting.
For authors or self-publishers navigating Australian book or article publication, check out our detailed guide on publishing a book in Australia.
Frequently Asked Questions
How has the #MeToo movement affected defamation law for media publishers?
The #MeToo movement led to increased defamation claims against media publishers. While reforms have been proposed to improve reporting on sexual violence and clarify relevant laws, no major legislative changes have been made yet.
Do defamation defences apply differently to comments made online versus in print media?
No. The same legal principles apply regardless of the medium. A social media post is judged by the same standards as a newspaper article.
Can a publisher rely on more than one defence at the same time?
Yes. It is common to plead multiple defences such as truth and public interest. If one defence fails, another may still provide protection.
Does retracting or correcting a publication strengthen a defence?
While not a complete defence, a prompt correction, clarification, or apology can influence the court’s assessment of reasonableness and may reduce damages.
Is opinion or commentary treated differently from fact under defamation law?
Yes. Honest opinion can be a separate defence if the statement is clearly identifiable as opinion, based on proper material, and related to a matter of public interest.
