Picture this: You’re a journalist who’s just published an investigative piece about a local politician’s business dealings.
Or a small business owner who left an honest but scathing review about a supplier online.
Perhaps you’re a concerned citizen who shared a social media post about a public figure’s conduct.
Then it happens – you receive a letter threatening defamation action.
Your heart sinks. What now?
Can you be sued for telling the truth? What if you were just expressing your opinion? Are you protected if you were reporting on a court case or council meeting?
While our legal system protects people from having their reputations unfairly damaged, it also recognises that free speech is fundamental to a democratic society. This balance is achieved through a range of defences designed to protect legitimate communication while weeding out malicious attacks on reputation.
Defamation law in Australia provides several defences for individuals and organisations facing defamation claims. These defences are primarily governed by the uniform defamation legislation across Australian states and territories, which came into effect in 2006 and was recently updated in 2021 and in 2024.
Understanding these defences is crucial for anyone who publishes material that might be subject to defamation proceedings. Here’s a brief rundown on the primary defences available under the legislation and recent developments …
Recent Developments
Australian defamation law has undergone substantial reform in recent years through a two-stage process.
The Stage 1 reforms (2021) introduced the serious harm threshold (s 10A), the public interest defence (s 29A), qualified privilege for peer-reviewed academic publications (s 30A), a single publication rule, caps on damages for non-economic loss, and enhanced protection for public interest disclosures.
The Stage 2 reforms (commenced 1 July 2024 in NSW and ACT) address digital platform liability through a new Division 2A, introducing exemptions for passive digital intermediaries providing caching, conduit or storage services (s 10C) and search engines (s 10D), a new defence for platforms with accessible complaints processes (s 31A), expanded absolute privilege for reports to police and complaints bodies (s 27), court powers to order non-party platforms to take access prevention steps (s 39A), and preliminary discovery against digital intermediaries (s 23A).
Together, these reforms aim to better balance free speech with reputation protection in both traditional and digital publishing contexts.
The Stage 2 reforms have now commenced in NSW, ACT, Victoria, Queensland and Tasmania. South Australia has enacted partial reforms (excluding the digital intermediary exemptions and defences).
Western Australia and the Northern Territory have not enacted either the Stage 1 or Stage 2 reforms. Practitioners should confirm the current position in their relevant jurisdiction, particularly given the forum shopping implications of this ongoing lack of uniformity.
The Serious Harm Threshold
Before any defence is raised, a plaintiff must first establish that the publication has caused, or is likely to cause, serious harm to their reputation (s 10A). For corporations that are entitled to sue, this threshold is higher: serious financial loss must be shown.
This threshold acts as an early filter, preventing trivial claims from proceeding regardless of whether the material is technically defamatory. It was introduced in the 2021 reforms to address concerns about defamation law being used to stifle legitimate public debate.
If the plaintiff cannot establish serious harm, the claim fails without the defendant needing to rely on any defence. In practice, this means defendants should always consider whether the serious harm threshold is met before turning to substantive defences, it may provide a complete answer to the claim.
Excluded Corporations
Not all corporations can bring defamation proceedings. An excluded corporation is prohibited from suing for defamation entirely. A corporation is an excluded corporation if it:
- employs 10 or more persons (including employees of related bodies corporate), or
- is not formed in Australia.
This means large companies, multinational corporations, and foreign companies cannot sue for defamation in Australia. Only small Australian businesses (fewer than 10 employees) retain the right to bring defamation proceedings, and even then must prove serious financial loss.
Excluded corporations seeking redress for reputational harm are limited to alternative causes of action such as injurious falsehood, which requires proof of malice and actual damage, a considerably higher bar.
DEFENCES
Truth (Justification) (s 25)
The defence of truth, also known as justification, is one of the most straightforward defences available. Under this defence, a defendant can avoid liability by proving that the defamatory material was substantially true. The defendant doesn’t need to prove that every detail was accurate – substantial truth is sufficient.
Key requirements:
- The material must be substantially true in substance and fact,
- Minor inaccuracies won’t defeat the defence if the “sting” of the defamation is true,
- The burden of proof lies with the defendant.
If the defence of truth is successfully established, it completely defeats the defamation claim.
Contextual Truth (s 26)
This defence applies when the published material contains both true and false elements.
If the defamatory statements are overshadowed by true statements that are also part of the publication, the defendant can claim the defence of contextual truth. The defence is essentially about the overall impact of the publication on the plaintiff’s reputation.
Key requirements:
- The defendant must show that one or more of the imputations are substantially true (contextual imputations)
- The false imputations complained of by the plaintiff do not cause any further harm to the plaintiff’s reputation, given the damage already caused by the true contextual imputations
- Put simply: if the truth is already damaging enough, the additional false statements don’t make things worse.
If successful, the defence of contextual truth provides a complete defence to a defamation claim.
Absolute Privilege (s 27)
Absolute privilege provides complete protection from defamation claims, regardless of malice or falsity. This defence applies in specific circumstances where free speech is considered paramount to protecting reputation.
Circumstances where absolute privilege applies:
- Parliamentary proceedings (speeches, debates, committee hearings)
- Court proceedings (pleadings, evidence, submissions, judgments)
- Communications between lawyer and client
- Certain official government communications
Absolute privilege is a complete defence against a defamation claim.
The Stage 2 reforms in 2024 expanded absolute privilege to cover material published to Police officers acting in their official capacity and certain other complaints-handling bodies. This ensures that individuals can report suspected wrongdoing – such as complaints of sexual assault – without fear of defamation liability.
Public Interest Defence (s 29A)
The public interest defence, introduced in the 2021 reforms, is one of the most significant additions to Australian defamation law. It protects publishers of defamatory material where the subject matter is of public interest and the defendant reasonably believed that publication was in the public interest.
Key requirements:
- The matter concerns an issue of public interest,
- The defendant reasonably believed that publication of the matter was in the public interest.
Factors relevant to reasonableness:
- The seriousness of any defamatory imputation,
- The extent to which the matter relates to the performance of public functions or activities of the person,
- the extent to which the matter published distinguishes between suspicions, allegations and proven facts,
- Whether it was in the public interest for the matter to be published expeditiously,
- The sources of information and integrity of those 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 plaintiff’s side of the story was sought and accurately reported,
- Any other steps taken to verify the information,
- the importance of freedom of expression in the discussion of issues of public interest.
This defence is particularly important for investigative journalism and whistleblowing.
Unlike the defence of truth, it does not require the defendant to prove the defamatory statements were true; only that the publication process was reasonable and the subject matter was genuinely in the public interest.
If successful, the public interest defence provides a complete defence to a defamation claim.
Qualified Privilege (s 30)
Qualified privilege protects communications made in good faith without malice, even if they contain false statements, provided the publisher believed them to be true.
Key requirements:
- The recipient has an interest or apparent interest in receiving information on a particular subject,
- The defamatory matter is published to the recipient as part of providing information on that subject,
- The defendant’s conduct in publishing the material is reasonable under the circumstances.
Considerations:
- The relationship between the parties, including social or moral rights or duties,
- The context of the publication,
- The absence of malice,
- The conduct of the defendant before and after the publication.
This defence can be defeated if the plaintiff proves the defendant acted with malice.
The 2021 amendments introduced a specific qualified privilege for peer-reviewed publications in scientific or academic journals (s 30A). This defence is intended to protect the free exchange of scientific and academic information.
It recognises the importance of scholarly discourse and protects publishers of peer-reviewed material, provided the publication relates to a scientific or academic matter and was assessed by an independent panel of experts before publication. As with standard qualified privilege, malice will defeat this defence.
Honest Opinion (s 31)
The defence of honest opinion, also sometimes referred to as fair comment, is a legal defence against a defamation claim. It allows a person to express opinions on matters of public interest, provided those opinions are genuinely held and based on true or privileged facts.
Key requirements:
- The statement in question must be an expression of opinion rather than a statement of fact,
- The opinion must be based on proper material,
- The opinion must relate to a matter of public interest,
- The opinion must be genuinely held by the person expressing it and not made out of malice.
An opinion is based on proper material if the supporting material is either included, well-known, accessible through a link, or clear from context, and the material is either substantially true, published under qualified privilege, or protected by section 28 (publication of public documents) or section 29 (fair report of proceedings of public concern) of the Defamation Act.
As stated above, the opinion must be genuinely held by the person expressing it and not made out of malice.
Importantly, where the defendant is an employee or agent of another person (such as a journalist employed by a media organisation), the defence is available if any person genuinely held the opinion; it need not be the employee themselves. This provision recognises that media organisations often publish opinions held by sources, commentators, or the organisation itself, rather than the individual journalist.
Innocent Dissemination (s 32)
This defence protects subordinate distributors (such as newsagents, libraries, or internet service providers) who were not aware they were distributing defamatory material and had no reason to be aware.
Requirements:
- The defendant was not the author, editor, or publisher, ie, they are the subordinate distributor of the defamatory material,
- The defendant neither knew, nor ought reasonably to have known, that the matter was defamatory, and
- The defendant’s lack of knowledge was not due to any negligence on the part of the defendant.
Digital Platform Liability
Digital Intermediary Provisions (Stage 2 Reforms, 2024)
The Defamation Amendment Act 2023 (NSW) introduced significant reforms addressing defamation in the digital age, commencing in NSW and the ACT on 1 July 2024.
These Stage 2 reforms inserted a new Division 2A into Part 2 of the Act, providing exemptions and defences for digital platforms while ensuring accessible remedies for those defamed online.
Definitions (s 10B)
Section 10B defines key terms for the digital intermediary provisions, including caching, conduit, and storage services provided by the digital intermediary.
A digital intermediary is defined as a person, other than an author, originator or poster of the matter, who provides or administers the online service by means of which the matter is published. This broad definition specifically includes forum administrators.
Conditional Exemption for Caching, Conduit and Storage Services (s 10C)
Section 10C provides a conditional exemption from liability for digital intermediaries providing caching, conduit or storage services. These are passive intermediaries with limited control over third-party content.
Because this is an exemption rather than a defence, a digital intermediary falling within s 10C is not liable for publication in the first place allowing for early resolution of proceedings against such entities.
Exemption for Search Engine Providers (s 10D)
Section 10D provides a conditional exemption for search engine providers in relation to organic (but not sponsored) search results. This recognises that search engines play an essentially passive role in indexing and displaying third-party content, and should not be treated as publishers of that content in the same way as the original author or host.
Early Determination of Exemptions (s 10E)
Section 10E allows for early determination of whether the s 10C or s 10D exemptions apply. This procedural mechanism enables digital intermediaries to resolve their liability status at an early stage, potentially avoiding the cost and burden of full defamation proceedings.
Defence for Digital Intermediaries (s 31A)
Section 31A introduces a new defence for digital intermediaries that is separate from the existing innocent dissemination defence in s 32. To rely on this defence, the digital intermediary must prove that:
- it was a digital intermediary in relation to the publication;
- at the time of publication, it had an accessible complaints mechanism; (such as a readily accessible email address, direct messaging service, or web page for complaints); and
- if the plaintiff made a written complaint under the Act, the intermediary took reasonable access prevention steps within seven days (such as removing the post, blocking access, or preventing further publication).
This defence directly responds to the High Court’s decision in Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27, which found media companies liable as publishers of third-party comments on their social media pages.
Non-Party Orders Against Digital Intermediaries (s 39A)
Section 39A empowers courts to make orders against digital intermediaries who are not parties to defamation proceedings, requiring them to take access prevention steps in relation to defamatory digital matter. This addresses the practical reality that effective remediation often requires action by platforms hosting or linking to the material, even where those platforms are not themselves defendants.
Preliminary Discovery Orders (s 23A)
Section 23A provides for preliminary discovery orders against digital intermediaries to assist plaintiffs in identifying anonymous posters of defamatory digital matter. Where the court procedure law permits, a person seeking to bring defamation proceedings may obtain an order for preliminary discovery for the following purposes:
- to obtain information to assist in identifying the posters of the matter; and/or
- to obtain information to assist in locating physical or digital addresses for the posters, to allow concerns notices to be given to them or defamation proceedings to be commenced.
Before making such an order, the court must take into account the objects of the Act, as well as privacy, safety or other public interest considerations that may arise if the order is made. For example, the court should consider evidence suggesting a poster is in fear of domestic violence from the person seeking the order to obtain their address.
This provision balances the legitimate interest of defamed persons in identifying their defamers against the privacy and safety interests of anonymous posters. The court retains discretion to refuse discovery where disclosure would create unacceptable risks, while facilitating access to justice for genuine complainants.
Consent
If the plaintiff consented to the publication of the defamatory material, this provides a complete defence however it is rarely used. The burden is on the defendant to prove consent was given.
Apology and Offer of Amends
An apology and offer of amends can significantly impact defamation proceedings. An offer of amends can be made in response to a Concerns Notice.
A Concerns Notice is a written document that the potential plaintiff (the person claiming to be defamed) must serve on the potential defendant (the person who published the material) before commencing defamation proceedings. It’s essentially a formal complaint that says “this publication has defamed me, and here’s why.”
Elements of an Offer to Make Amends
- must be in writing, and
- must be readily identifiable as an offer to make amends under the legislation,
- and
- must provide for the offer to be open for acceptance for at least 28 days commencing on the day the offer is made, and
- if the offer is limited to any particular defamatory imputations–must state that the offer is so limited and particularise the imputations to which the offer is limited, and
- must 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 or, if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited, and
- if material containing the matter has been given to someone else by the publisher or with the publisher’s knowledge–must 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
- must include an offer to pay the expenses reasonably incurred by the aggrieved person before the offer was made and the expenses reasonably incurred by the aggrieved person in considering the offer.
It may also include other elements such as an offer to pay compensation for any economic or non-economic loss of the aggrieved person but this is not mandatory.
Benefits of apology:
- May prevent proceedings from commencing
- Can mitigate damages if proceedings continue
- Demonstrates good faith
- If a publisher makes a reasonable offer to make amends for a defamatory statement, but the aggrieved person rejects it, the publisher can use the rejected offer as a defence in subsequent defamation proceedings.
Practical Considerations
When facing a defamation claim, several practical factors should be considered:
Early assessment is crucial – Defamation proceedings move quickly, with strict time limits for responses (such as 28 days to respond to a Concerns Notice). Early legal advice can identify the strongest available defences and strategic options.
Multiple defences can be pleaded – Defendants aren’t limited to one defence and can rely on several simultaneously, provided they’re not inconsistent.
Cost considerations – Defamation proceedings can be expensive, and the availability of defences should be weighed against the likely costs and risks of defending the claim.
Settlement opportunities – Many defamation disputes are resolved through negotiation, apology, and settlement rather than proceeding to trial.
Conclusion
The defences available in Australian defamation law provide important protections for free speech while recognising the need to protect individuals from unjustified attacks on their reputation.
The success of any defence depends heavily on the specific facts and circumstances of each case. Given the complexity of defamation law and the serious consequences of these proceedings, anyone facing a defamation claim should seek experienced legal advice to properly assess their options and develop an appropriate defence strategy.
How Law Quarter Can Help
Defamation matters move quickly and the stakes are high, whether you’re protecting your reputation or defending a claim. Professional legal advice is essential in navigating these complex provisions and determining the most appropriate defence strategy for each unique situation.
Our Litigation team has experience acting for individuals, small businesses, and organisations across all aspects of defamation law.
We can assist if you:
- Have received a Concerns Notice or threat of defamation proceedings and need urgent advice on your options;
- Are a small business facing reputational harm from false statements and want to understand whether you can bring a claim;
- Need to respond to defamatory Google reviews, social media posts, or other online content;
- Want to seek removal of defamatory material from digital platforms, including through court orders under the new Stage 2 provisions;
- Are a journalist, publisher, or content creator seeking advice on defences available for your publication;
- Need to identify an anonymous poster through preliminary discovery;
- Are considering making an offer to make amends or responding to one;
- Require representation in defamation proceedings, whether as plaintiff or defendant.
Early legal advice is critical in defamation matters. The strict 28-day timeframes for both responding to Concerns Notices and offers to make amends mean that delays can significantly affect your options and exposure.
To discuss your matter in confidence, please contact Jacqui at jacqui@lawquarter.com.au or Connor at connor@lawquarter.com.au in our Law Quarter Litigation team. We offer initial consultations to help you understand your position and the best path forward.