Defending Defamation Claims in Melbourne

The truth is an absolute defence — here's how it works. The defence of justification applies when the defendant proves that the defamatory statements are substantially true. Under the Defamation Act 2005 (Vic), truth alone is a complete defence, meaning that if the defendant can establish the truth of the defamatory material, they are not liable for defamation.

This is a new and important defence introduced in the 2021 reforms. In July 2021, Victoria introduced a public interest defence. This defence applies when the defendant proves that the publication concerns an issue of public interest and that they reasonably believed the publication was in the public interest. This aligns with the defence available in the United Kingdom and aims to balance freedom of expression with protection of reputation.

This is sometimes overlooked but can be a powerful defence in the right circumstances. The defence of triviality applies when the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm. This defence is intended for minor defamatory statements that are unlikely to cause real damage to the plaintiff's reputation.

Qualified privilege is a commonly misunderstood but important defence. Qualified privilege protects statements made without malice on occasions where the communicator has a legal, moral, or social duty to make the statement, and the recipient has a corresponding interest in receiving it. Examples include:

• Employment references
• Credit reports
• Statements made to protect one's interests

However, if the plaintiff proves that the statement was made with malice, this defence is defeated.

This defence is particularly relevant for internet intermediaries and platform operators. The defence of innocent dissemination protects subordinate distributors who unknowingly distribute defamatory material without negligence. This includes:

• Booksellers
• Libraries
• Internet service providers

To succeed, the defendant must prove they did not know, and could not reasonably have known, that the material was defamatory.

Absolute privilege provides complete immunity from defamation claims for statements made in specific contexts, regardless of intent or truth. Situations where this defence applies include:

• Parliamentary proceedings
• Judicial proceedings
• Communications between high-level government officials

This means that participants can speak freely without fear of defamation liability in these settings.

Yes, the defence of publication of public documents applies when the defamatory material is contained in a public document or a fair copy, summary, or extract of a public document. Public documents include:

• Records of parliamentary proceedings
• Judicial judgments
• Government reports

The publication must be fair and accurate to rely on this defence.

This defence applies when the defendant publishes a fair report of proceedings that are of public concern, such as:

• Parliamentary proceedings
• Judicial proceedings
• Public meetings dealing with matters of public interest

The report must be fair and accurate, and the proceedings must be lawfully conducted.

There's an important distinction between fact and opinion in defamation law — and this defence protects the latter. The defence of honest opinion applies when the defendant shows that the defamatory material is an expression of their genuine opinion, rather than a statement of fact. To succeed, the defendant must prove that:

• The matter was an expression of opinion related to a subject of public interest
• The opinion is based on proper material
• The opinion was honestly held

This defence is commonly used by reviewers and commentators.

While an apology itself is not a defence, under the Defamation Act 2005 (Vic), an apology can mitigate damages. Offering a prompt and sincere apology may reduce the harm to the plaintiff's reputation and potentially lessen the damages awarded if the plaintiff succeeds in the defamation action.