Can a defendant rely on the truth defence even if some of the specific allegations made are wrong?

Yes — the truth defence under s 25 Defamation Act 2005 (NSW) requires that the imputation (the meaning conveyed by the matter) is substantially true — not that every specific statement of fact is correct. If the sting of the imputation (for example, 'this person is dishonest') is substantially true, the defence is established even if some of the specific examples given in support of the imputation are incorrect or overstated. However, the defendant must identify exactly which imputation they are seeking to justify — courts will not allow a defendant to 'justify' a more serious imputation than the matter actually conveyed in order to avoid proving a less serious but still defamatory imputation.

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Q: What is the difference between the truth defence and the honest opinion defence?

The truth defence (s 25 Defamation Act 2005 NSW) applies to statements of fact — it requires the defendant to prove that the defamatory imputation was substantially true. The honest opinion defence (s 31) applies to expressions of opinion — it does not require the opinion to be true or reasonable, only that it was the defendant's genuine opinion at the time, that it was on a matter of public interest, and that it was based on proper material (facts that were substantially true or protected by privilege). The key question in many defamation cases is whether the statement is characterised as fact or opinion — a question of context, form, and what ordinary reasonable people would understand.

Q: What should I do if I receive a concerns notice from a defamation claimant?

If you receive a concerns notice, seek legal advice immediately. You have 28 days to make an offer to make amends — which can include publishing a correction or apology, removing the content, and paying compensation. A reasonable offer to make amends that is rejected by the claimant is a complete defence to the defamation claim. However, a defamation lawyer advises on whether an offer to make amends is the right strategy (depending on the strength of the available defences) and on the terms of any offer — including the wording of any apology or correction, which can be critical to its effectiveness.

Not every statement that is complained of as defamatory is indefensible. The Australian defamation legislation provides a range of statutory defences — truth (justification), honest opinion, qualified privilege, absolute privilege, and (since 2021) public interest. A defamation defence lawyer advises on the available defences, their prospects, and the most cost-effective strategy for resolving the claim — including the offer to make amends procedure.

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⚠ After receiving a concerns notice, the publisher has 28 days to make an offer to make amends. Failing to make a reasonable offer within this period may deprive the defendant of the offer to make amends defence. Get defamation defence advice immediately.

Defamation Defences

The statutory defences to defamation in Australia

1. Truth (Justification) — s 25 Defamation Act 2005 (NSW): It is a complete defence to defamation if the defendant establishes that the defamatory imputation conveyed by the matter is substantially true. The defendant must prove the imputation (not the specific words used) was substantially true — minor inaccuracies that do not affect the overall sting of the imputation do not defeat the defence. The truth defence is the strongest defence — if successfully established, it defeats the claim completely regardless of the defendant's motive for publishing.

2. Honest Opinion — s 31 Defamation Act 2005 (NSW): The defendant has a defence of honest opinion if the matter was an expression of opinion (not a statement of fact) and the opinion related to a matter of public interest and was based on proper material. The defence fails if the claimant establishes that the opinion was not the defendant's genuine opinion at the time. An honest opinion does not need to be reasonable — even an extreme, strongly worded, or unreasonable opinion is protected if it is genuinely held and based on proper material.

3. Qualified Privilege — s 30 Defamation Act 2005 (NSW): A defendant has a defence of qualified privilege in relation to matter published to a person in a situation where the defendant has an interest or duty (legal, social, or moral) to provide information of that kind and the recipient has a corresponding interest or duty to receive it. The defence is lost if the claimant establishes that the defendant acted with "malice" — an improper motive that was the dominant purpose of the publication.

4. Absolute Privilege — s 27 Defamation Act 2005 (NSW): Statements made in the course of parliamentary proceedings, judicial proceedings, and certain other official processes are absolutely privileged — they cannot give rise to a defamation claim regardless of the truth of the statement or the motive of the speaker. The defence also extends to fair and accurate reports of proceedings of parliaments and courts.

5. Public Interest — s 29A Defamation Act 2005 (NSW) (introduced 2021): A defendant has a defence of publication on a matter of public interest if the matter concerns an issue of public interest and the defendant reasonably believed that publishing the matter was in the public interest. The defence is similar to the "responsible journalism" defence in the UK. It is designed to protect journalists, whistleblowers, and others who publish on matters of public concern.

6. Offer to Make Amends — s 18 Defamation Act 2005 (NSW): A publisher who makes a reasonable offer to make amends after receiving a concerns notice (including an apology, a correction, and compensation) and whose offer is unreasonably refused can rely on the offer to make amends as a complete defence to the defamation claim.

Defence Matters

Defamation defence matters we handle

Truth defence strategy

Advising defendants on establishing the truth defence — identifying the substantial truth of the imputation, gathering supporting evidence (documents, witnesses), and managing the risks of the truth defence (if truth cannot be proved, it may aggravate damages).

Honest opinion identification

Identifying whether the statement complained of is an expression of opinion (protected) or a statement of fact (not protected) — a distinction that is often contested and depends on the context and form of the statement.

Offer to make amends

Preparing and submitting an offer to make amends — including an apology, a correction or retraction, removal of the content, and an offer of compensation — to resolve the defamation claim before litigation commences.

Serious harm challenge

Challenging the claimant's ability to establish the serious harm threshold — particularly where the publication had limited audience, the imputation was minor, or there is no evidence of concrete reputational impact.

Public interest defence

Advising journalists, media organisations, and whistleblowers on the availability of the public interest defence — including the evidence needed to establish a reasonable belief that publication was in the public interest.

Defamation proceedings defence

Defending defamation proceedings from service of the statement of claim through to trial — including pleadings, particulars, discovery, expert evidence on contextual imputations, and cross-examination of the claimant.

Frequently Asked Questions

Defamation defence questions answered

What is the difference between the truth defence and the honest opinion defence?

Truth (s 25) applies to statements of fact — requires proof that the defamatory imputation was substantially true. Honest opinion (s 31) applies to expressions of opinion — does not require the opinion to be true or reasonable, only that it was the defendant's genuine opinion at the time, on a matter of public interest, and based on proper material. The key contested question in many cases is whether the statement is fact or opinion — a question of context and form.

Can a defendant rely on the truth defence if some specific allegations are wrong?

Yes — the truth defence under s 25 requires that the imputation (the meaning conveyed) is substantially true, not that every specific statement of fact is correct. If the sting of the imputation is substantially true, the defence is established even if some specific supporting details are incorrect or overstated.

What should I do if I receive a concerns notice?

Seek legal advice immediately. You have 28 days to make an offer to make amends — including a correction, apology, removal of content, and compensation. A reasonable offer rejected by the claimant is a complete defence to the defamation claim. A defamation lawyer advises on whether the offer to make amends strategy is right, given the strength of the available defences, and on the terms of any offer including the wording of any apology.