Defamation and Defences in Australian Law

This article discusses the concept of defamation and the available defences under Australian law. It explores the elements of defamation, such as defamatory matter, reference to the plaintiff, and publication to a third party. It also examines the defences of truth, absolute privilege, qualified privilege, fair report, innocent dissemination, honest opinion, and triviality. The article concludes by analyzing the application of these defences to a specific case.

Running head: PUBLIC RELATION LAW
PUBLIC RELATION LAW
Name of the Student:
Name of the University:
Author Note:

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Answer 1(a):
Issues:
The issue involved in this case is whether Melania should be held liable if Donald brings
a case of defamation against her.
Rules:
According to section 3 of the Defamation Act 2005, the act is enacted to provide
provisions to promote uniform laws of defamation in the whole country of Australia, to ensure
that such law does not put unreasonable limits on the freedom of expression and on the
publication and discussion of matters of public interest and importance, to provide effective
and fair remedies for persons whose reputations are harmed by the publication of defamatory
matter and finally to promote speedy and non litigious disputes about the publication of
defamatory matter1.
The definition of defamation provides that the act of saying or implying something to
damage the reputation of a person. There are mainly two sources of defamation law; firstly the
common law and secondly, the said act. However, the legislation does not override the
common law as given in section 6 of the act2.
1 The Defamation Act 2005, sec.5.
2 The Defamation Act 2005, sec.6.

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The three essentials that will contribute to the defamatory action are the matter must
be defamatory, such defamation refers to the plaintiff and such defamation must be relayed or
published to a 3rd party3.
The first condition is that the matter must be defamatory. According to section 4 of the
Defamation Act provides the matter by using which a person can be defamed by causing
damage to one’s reputation4. As per the section, matter can be an article, report, advertisement
or other thing that can be communicated by newspaper, magazine or other periodicals. The
matter can also be a program, report, advertisement, or other thing communicated by means of
electronic mediums like television, radio, internet or other forms of communication. Matter
may include a letter, note or any other form of writing, a picture, gesture or oral utterance or it
can be anything by which something can be communicated to other persons.
According to common law, a matter is said to be defamatory if such matter exposes the
victim to hatred, contempt or ridicule. This was observed in the case of Parimiter v Coupland
[1840] 6 M & W 105 and Ettingshausen v ACP Ltd (1991) 23 NSWLR 443. Defamation occurs
when any sort of communication tends to lower the plaintiff in the eyes of reasonable right
minded people of the society as laid down in the case of Sim v Stretch [1936] 2 All ER 1237. In
the case of Henry v TVW Enterprises Ltd [1990] WAR 475, it is observed that an act amounts to
defamation when the plaintiff is shunned or avoided.
The second element is such defamation must be related to the plaintiff. There are five
ways by which the defamation is said to be referred to the plaintiff are as follows; when the
3 Joyce, Daniel. "Data associations and the protection of reputation online in Australia." Big Data & Society 4, no. 1
(2017): 2053951717709829.
4 The Defamation Act 2005, sec.4.

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plaintiff is specifically named or his identity is revealed in a photograph, when a person has
been named specifically and some other person having the same name is affected, when the
plaintiff is not named specifically but still can be identified, when there is a mistaken identity
and when the plaintiff is not named but he belongs to a group that is named or identified.
The second condition as mentioned above is that when a person is specifically named
and someone else with the same name is being affected. It happens in the case of Lee v Wilson
(1934) 51 CLR 276. In this case, a newspaper article in Victoria referred to a corrupt Detective
Lee. At that time there were three police officers having the same name of Lee in Victoria. All of
them were affected by such newspaper article. The court held that the article had identified
and caused defamation to all of them. Again, as said above if a person is not named directly but
he belongs to a particular group which is referred, then it also accounts for defamation as found
in the case of Bjelke-Peterson v Warburton [1987] 2 Qd R 465 where the leader of the
Opposition party made statements about the corruption and mismanagement of the
Government. This was held capable of being defamatory of each of the 18 members of the
Ministry. Nixon v Slater & Gordon [2000] FCA 531 (2000) is an interesting case of the doctors
who sued Slater & Gordon for defamation where the plaintiff was named specifically but still
can be identified.
The third criterion of defamation is its publication to the third party. Publication over
the internet is the same under the law as any other kind of publication. If the publication
relates to a person who stays in Australia then that person may be able to argue that the
Australian Law should apply to the publication, although issues of the choice of law can be

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complicated as found in Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575. People posting on
social media need to be careful that the law of defamation also applies to them. There have
been numerous cases in Australia where a person has successfully sued an individual for his
posting on the social media posts like Mickle v Farley [2013] NSWDC 295, Dabrowski v
Greeuw [2014] WADC 175, Polias v Ryall & Ors [2014] NSWDC 1692.
Under the provisions of Australian law, an individual or body must have legal personality
to bring an action for defamation. The suit of defamation can be brought before the court by
any living person, a corporation with fewer than 10 employees as per section 8 of the
Defamation Act5. As per section 9 of the act, an action in defamation cannot sustain if the
plaintiff has died6.
For defamatory publication in social media, any person involved in the publication can
be sued7. For social media posts, same elements of defamation apply8. Sharing or re-tweeting
creates liability, even the social media platforms can also be made liable9.
Application:
From the above discussion, it can be said that Melania can be held liable if Donald brings
a suit of defamation against him. The three essentials of the defamation are present in the case.
Firstly, the matter posted by Melania contains defamatory matter, secondly the defamation was
directed to Donald and thirdly, such defamatory matter is communicated to third person
5 The Defamation Act 2005, sec.8.
6 The Defamation Act 2005, sec.9.
7 Butler, Desmond A., and Sharon Rodrick. Australian media law. Thomson Reuters (Professional) Australia
Limited, 2015.
8 MacCallum, Walter. "Defamation actions and social media: Where are the risks?." Governance Directions 67, no.
11 (2015): 677.
9 George, Patrick. "Defamation: Reviewing defamation law for the digital age." LSJ: Law Society of NSW
Journal 54 (2019): 74.

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through social media. Melania posted directly against Donald referring his name. She alleged
that she suffered from domestic abuse and violence as well as serial cheating with countless
women. Such post was made public hence it is communicated to third parties. Moreover,
Donald was moved down from his position at his school and he was awaiting an investigation.
Conclusion:
From the above discussion, Melania can be held liable for defamation.
Answer 1(b)
Issues:
The issue involved in this question is what defences are available to Melania to protect
herself in the suit of defamation.
Rules:
As discussed above, Melania can be held liable for defamation. However she can use a
number of defences to escape from such liability10. In Australia, mainly seven defences are
available to the accused which are grounds of truth, absolute privilege, qualified privilege, fair
report, innocent dissemination, honest opinion and triviality.
Grounds of truth: One can defend against a claim of defamation by proving that the
defamatory statement is true. If such truthfulness can be proved, then one can successfully
defend himself in the case as per section 22 of the act11.
10 Barendt, Eric. "Defamation Law." (2017): 291-295.
11 The Defamation Act 2005, sec.22.

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Absolute privilege: in some situations there is total immunity from liability of
defamation where the law recognizes the need of complete freedom of communication. Such
situations include communication in course of parliamentary proceedings, in course of court or
tribunal proceedings, communications between the lawyers and his clients as in the case of
More v Weaver [1928] 2KB, communications between executives of High offices and
communication between husband and wife.
Qualified privilege: section 27 of the act deals with this provision which gives limited
protection to some types of communications as found in Roberts v Bass [2002] HCA 5712.
However this defence can be defeated if the plaintiff can show that the defendant has acted in
malice as given in s. 27(1) of the Act.
Triviality: it is a defence to the publication of the defamatory matter if the defendant
shows that the circumstances of the publication were such that the plaintiff was not likely to
sustain any harm as found in the case of Jones v Sutton [2004] NSWCA 439; (2004) 61 NSWLR
614. Section 10 of the act deals with this defence13.
Fair report: fair report of any proceedings of public concern as per section 29 of the act
also provides for defences of defamation.
Innocent Dissemination: as per section 32 of the Act, this defence applies if the person
published defamatory matter in his capacity or as an employee or agent of a subordinate
distributor14. The person who published the defamatory matter must neither have known or
12 The Defamation Act 2005, sec.27.
13 The Defamation Act 2005, sec.10.
14 The Defamation Act 2005, sec.32.

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have reason to have known that such matter was defamatory and their lack of knowledge must
not be due to any negligence.
Honest opinion: this defence is provided under section 31(1) of the Defamation Act15. It
is applicable where the defamatory matter was an expression of an opinion other than a
statement or fact relating to matter of public interest and is based on material which is
substantially true. This defence also applies where the matter was an expression of opinion of
an employee or agent of the person who published the matter as per section 31(2)-(3) of the
act.
Application:
All these defences were not applicable to Meliana as none of them is applicable.
However, if some facts can be assumed, then section 22 of the act can be made available16. This
is because according to the facts of the case given, it cannot be inferred whether Meliana has
lied or spoken the truth. If she can prove her statements by showing proper evidence, then she
can defend her case using an appropriate defence for her. However no such information is
available, hence it can be assumed that she has lied against Donald. No other defences are
available to Melania in the given case.
Conclusion:
As per the facts of the case, Melania cannot use any of the defences to succeed in the
case of defamation against her.
15 The Defamation Act 2005, sec.31.
16The Defamation Act 2005, sec.22.

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Answer 2:
Issue:
The issue involved in this case was whether the Alpha Cosmetics Pty Ltd would be held
liable for the breach of section 18(1) of the Australian Consumer Law17.
Rules:
Section 18(1) of the Australian Consumer law (previously enumerated in section 52(1) of
Trade Practices Act) provides that a person must not engage in any conduct or transaction
which is misleading or deceptive or likely to mislead or deceive in trade, commerce or business.
In addition to applying to individual persons, this section applies as a Commonwealth law to the
conduct of the Corporations as per section 131 of Competition and Consumer Act 201018.
In a similar case of Reckitt Benckiser (Australia) Pty Limited v Procter & Gamble Australia
Pty Limited [2018] FCA 378, section 18 of the Australian Consumer law is referred. However
section 18 only gives a standard on the market place, it does not provide any remedies which
are found elsewhere in the legislation and include damages, injunction, rescission of contracts
and other measures.
Section 18 of the Australian Consumer law is not only limited to individual or consumer
dealings or transactions, it also deals with cases of misleading conduct in business to business
cases too19. This section has a very strong impact and a very wide application. False
17The Australian Consumer Law, sec. 18(1).
18 Competition and Consumer Act 2010, sec.131.
19 Bianchi, Lauren. "Consumer law: Changes to Australian consumer law: Key benefits for vulnerable
consumers." LSJ: Law Society of NSW Journal 50 (2018): 71.

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advertisement if is caught by this legislation, it is possible to put stop to such misleading
advertisement. However, such misleading conduct must occur in trade or commerce.
Application:
In the present case, it is found that the commercial part of the marketing campaign of
the Alpha Cosmetics Pty Ltd contains many misleading information that are basically false. The
voice over of the commercial claims that the products are not tested on animals but the
company did so in reality. It also claims the products are manufactured in Australia but in
reality they are manufactured in Mongolia. In addition to these, it says it has an association
with organizations that support men’s cancer which is again false. Thus the commercial is
totally misleading so as to deceive people.
Conclusion:
Hence from the above, it can be said that the Company will be liable for breach of
section 18(1) of the ACL.

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References:
Barendt, Eric. "Defamation Law." (2017): 291-295
Bianchi, Lauren. "Consumer law: Changes to Australian consumer law: Key benefits for
vulnerable consumers." LSJ: Law Society of NSW Journal 50 (2018): 71
Butler, Desmond A., and Sharon Rodrick. Australian media law. Thomson Reuters (Professional)
Australia Limited, 2015
George, Patrick. "Defamation: Reviewing defamation law for the digital age." LSJ: Law Society of
NSW Journal 54 (2019): 74
Joyce, Daniel. "Data associations and the protection of reputation online in Australia." Big Data
& Society 4, no. 1 (2017): 2053951717709829
MacCallum, Walter. "Defamation actions and social media: Where are the risks?." Governance
Directions 67, no. 11 (2015): 677
The Australian Consumer Law
The Competition and Consumer Act 2010
The Defamation Act 2005
The Trade Practices Act