The defence of innocent dissemination is intended to protect people such as newsagents, booksellers, librarians and internet service providers (ISP) who unwittingly publish defamatory matter without negligence on their part. However, the defence does not stand if the ISP, newsagent etc has the requisite knowledge of the content, however as to exactly what level of knowledge, the law is unclear.

There have been cases that explore the issue of the defence of innocent dissemination. Recent cases have held that an operator of an online search engine can be considered a secondary publisher of defamatory material, even though the operator may not have known that the material was defamatory in nature until it was brought to their attention [see Google Inc v Duffy (2017) 129 SASR 304].

In the case of Defteros v Google LLA [2020] VSC 2019 and the subsequent appeal [2021] VSCA 167 the Court was required to consider the defence of innocent dissemination to the particular facts of the case specifically relating to Google’s knowledge or means of knowledge of the content of the material published by it.

An issue raised in the first instance and again on appeal by Google related to the argument that Google was not well placed to assess whether the particular content was true and Google asserted that it was reasonable for them to rely on their sources, in this case The Age newspaper. On appeal the Court found at [146]:

Google also sought to rely upon the fact that Mr Defteros had not provided the full URL (web address) of a matter complained of in his notification. The notification however included in clear terms the precise matter published about which he had concerns. Whilst this notification did not comply with Google’s policy, the Court found it was sufficient to identify the defamatory material, hence putting Google on notice as a secondary publisher.

Truth (or justification) is a complete defence to an action for defamation.

The defendant (the alleged defamer) must prove that the defamatory imputation carried by the material published is substantially true. For example, a person who says that someone is a murderer must prove the fact of murder. Where defamatory matter carries several imputations, it is a defence if the reputation of the plaintiff is not harmed other than by the defamatory imputations which are proved to be true [Defamation Act 2005 (SA) s 24].

Where the defendant (the alleged defamer) proves that the matter carried 1 or more imputations that are substantially true (contextual imputations) and that any defamatory imputations of which the plaintiff complains that are not contextual imputations (i.e. because they are not proved to be true) do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations, then the defence of contextual truth succeeds.

The contextual imputations on which the defendant may rely to establish the defence of contextual truth can include imputations of which the plaintiff has complained. In other words, in order to establish the defence, a defendant may plead back (as contextual imputations) any substantially true imputations originally pleaded by the plaintiff.

For example, if a publication carries imputations that a professional person has intentionally deceived a client and has also stolen another client’s money and only one of the imputations is proved to be true, that may be sufficient to defend the whole publication through the defence of contextual truth.

Lord Birkett said in 1951 - 'It is the right of every man to comment freely, fairly and honestly on any matter of public interest.' This principle means that the common law defence of fair comment may apply where the defamatory words are an expression of opinion and not a statement of fact. It may be difficult to determine if words are statements of facts or expressions of opinion. Words must be construed in their context and in some circumstances words that would otherwise be statements of fact might be viewed as comments.

The opinion, however, must be fair and based upon facts which the defendant can identify and prove to be true. It must also be honestly held and not motivated by malice (some improper or dishonest motive). Personal ill will by the defendant towards the plaintiff is an example of malice. 'Public interest' is a wide concept involving what is a legitimate concern to the public. Instances may include the conduct of people holding public office, the conduct of a political party, the conduct of a clergyman and artistic works such as plays and books. It may apply to the criticism of a restaurant's food in a newspaper review.

Section 29 of the Defamation Act 2005 (SA) provides a defence of honest opinion where the expression of opinion is related to a matter of public interest and based on ‘proper material.’ An opinion is based on proper material if the material on which it is based is either set out in specific or general terms, is notorious or is accessible (e.g. from a link) or otherwise apparent from context AND the material is:

[s 29(5)]

Consumers leaving reviews online should be prepared to justify their opinion. In Cheng v Lok [2020] SASC 14, the Supreme Court of South Australia (in a default judgment) awarded damages to a lawyer following a bad review of his services on Google. The plaintiff had never met the defendant, was never retained as the defendant’s lawyer and had never represented the defendant in any capacity. The decision in Cheng illustrates that negative Google reviews will be considered publications for the purposes of the Defamation Act 2005 (SA).

Caution should be exercised when expressing opinions and reviews online, even anonymously. In Kabbabe v Google LLC [2020] FCA 126 the court made interlocutory orders allowing the plaintiff to serve a court application on Google outside of the Australian jurisdiction for the purposes of seeking preliminary discovery, and to request that Google reveal the identity of an anonymous online reviewer. The court held the view that this was reasonable, as the plaintiff had a prima facie case for defamation against the reviewer following a negative online review about the plaintiff’s business. The court held the view that it was not sufficient for Google to say that the review had been posted anonymously, as Google had the capacity to identify the person leaving the review.

Some statements are absolutely privileged, so that there can be no action for defamation even if the words were false and were published with malice. Statements that are protected by absolute privilege include those which are made in [s 25]:

Public Documents

The Defamation Act 2005 (SA) also provides a broad defence for the publication of defamatory matter contained in public documents [s 26].

Information published by the Crown

When the Crown (the government) provides information under the Freedom of Information Act 1991 (SA), it is protected from any liability for defamation [Freedom of Information Act 1991 (SA) s 50].

The Crown (from 2 October 2015) also cannot be sued for defamation for publication of certain other information as set out in the Civil Liability Regulations 2013 (SA). The Civil Liability Act 1936 (SA) envisages that the Crown may wish to make information public on its own initiative rather than in response to a Freedom of Information Act application [s 75A]. Under the Regulations, the Crown has no civil liability for publication of the following types of information [reg 26]:

The common law defence of qualified privilege allows free communication in certain relationships without the risk of an action for defamation - where the person communicating the statement has a legal, moral or social duty to make it and the recipient has a corresponding interest in receiving it. Giving a reference for a job applicant, answering police inquiries, communications between teachers and parents, local councillors, officers of companies, employers and employees, or traders and credit agencies, are all relationships that are protected by qualified privilege. However, the privileged communication must relate to the business at hand - the relationship cannot be abused for the purpose of relaying gossip.

A defendant who is acting in defence of her or his reputation can claim qualified privilege, as long as what is said is relevant to that defence. It is also available even if what was said was untrue, as long as the required relationship exists. However, qualified privilege is not a licence to say untruths. People making statements must believe that what they say is true.

The defence of qualified privilege cannot be successful if it can be proved by the plaintiff that the defamation was motivated by malice; for discussion on malice see Fair Comment.

Government and political matters are proper subjects for public discussion and such discussion is covered by the defence of qualified privilege. To maintain the defence of qualified privilege for such publications, the publisher must have acted reasonably in the circumstances and not been motivated by malice.

Section 28 of the Defamation Act 2005 (SA) provides a broader statutory defence of qualified privilege, where the recipient of defamatory matter has an interest or apparent interest (i.e. more than just prurient or in gossip) in having information on a subject and the defamatory matter is published by the defendant in the course of giving the recipient information on that subject. The defendant's conduct in publishing the matter must also have been reasonable.

Section 28(3) sets out the following factors the court may consider in determining whether the publisher has acted reasonably:

In order for the defence to apply, the party making an otherwise defamatory statement must be subject to a duty to make the statement, and the statement must be made to a party bearing a corresponding interest in receiving the information [s 28(1)]. It is not necessary to prove that the matter published concerned an issue of public interest to establish the defence of qualified privilege [s 28(3b)].

A fair report of proceedings of public concern is also a defence [s 27]. This can include reports of parliamentary, judicial and government proceedings, the proceedings of learned societies, sport and recreation associations, trade associations and meetings of shareholders of an incorporated company. The defence may be defeated on proof by the plaintiff that the defamatory matter was not published honestly for the information of the public or the advancement of education.

Defence: Publication of matter concerning public interest

It is a defence to the publication of defamatory matter if the defendant can prove that the matter concerns an issue of public interest; and that they reasonably believed that the publication of the matter was in the public interest. In determining whether the defence is established, a court must take into account all of the circumstances of the case.

The Court may take into account any of the following relevant factors:

[s 27A]

This defence is intended to provide greater protection to 'responsible journalism'. It can apply to commercial media and any person communicating on public interest matters, so long as they can prove they had a reasonable belief that the publication was in the public interest in the circumstances.

Defence: Scientific or academic peer review

It is a defence to the publication of defamatory matter if the defendant can prove that the matter was published in a scientific or academic journal (including in electronic form) and relates to a scientific or academic issue, where an independent review takes place. The independent review of the matter's scientific or academic merit must be carried out before the matter was published in the journal by either the editor of the journal (if the editor has expertise in the scientific or academic issue concerned) or at least one person who has such expertise [s 28A(1)].

If the grounds above are made out, then there is also a defence to the publication of an assessment of the same matter if the defendant can prove that the assessment was written in the course of the review, and was written by at least one person who carried out the independent review [ s 28A(2)].

A further defence exists where a defendant proves that the matter was contained in a fair extract or summary extract from a matter or assessment for which there is a defence because of subsections 28A (1) or (2) above. If a journal has more than one editor, a reference in this section to the editor of the journal is to be read as a reference to the editor or editors who were responsible for deciding to publish the matter concerned [s 28A(4)]. A defence established under this section will only fail if the plaintiff proves that the defamatory matter or assessment was not published honestly for the information of the public or the advancement of education [ s 28A(5)].

The Public Interest Disclosure Act 2018 (SA) (formerly the Whistleblowers Protection Act 1993 (SA)) protects people who disclose information relating to substantial risks to public health, safety or the environment, and public officers who disclose information relating to corruption, misconduct and maladministration in public administration.

Provided the information is reported to an appropriate authority (as specified in the Act, see s 5(5)) or in certain circumstances to a journalist or Member of Parliament, the Act gives immunity to the whistleblower [see s 5]. The Act does not protect people who make false or misleading claims [see s 10]. The person must believe, on reasonable grounds, that the disclosure is true [see ss 5(3) and 5(4)].