Being Sued for Defamation? Understand Your Legal Defences Now.

The main defences to defamation under Australian uniform defamation legislation include: justification (truth) — the matter is substantially true; honest opinion — the matter was an expression of opinion based on proper material; qualified privilege — the matter was published to a person with a duty or interest to receive it; absolute privilege — for statements in court, parliamentary, or other protected proceedings; and the public interest defence introduced by the 2021 reforms — the matter related to a matter of public interest and the defendant reasonably believed publication was in the public interest. The defendant bears the burden of proving a defence once the plaintiff establishes the basic elements of defamation.

The truth (justification) defence requires the defendant to prove that the defamatory imputation conveyed by the publication was substantially true — meaning true in all material respects. This is a matter of civil proof (balance of probabilities), not criminal proof. Evidence to support a truth defence can include documents, records, witness statements, prior court findings, and expert evidence. The key challenge is that the defendant must prove the truth of the imputation as it would have been understood by readers — not merely the literal words used. Gathering compelling evidence early is critical to the strength of a truth defence.

Qualified privilege applies where the defendant had a duty (legal, social, or moral) or interest in making the statement, and the recipient had a corresponding duty or interest in receiving it. Complaints about public officials, healthcare providers, or regulated professionals made to an appropriate body — such as a government department, regulator, or employer — are commonly protected by qualified privilege. However, the protection is "qualified" — it can be defeated if the plaintiff proves the defendant was actuated by malice (an improper motive). A lawyer can advise on whether your specific communication to the specific recipient is likely to attract qualified privilege.

The honest opinion defence (previously known as the "comment" or "fair comment" defence) protects the expression of a genuine opinion on a matter of public interest where the opinion is based on proper material (that is, facts or other material that are substantially true, privileged, or otherwise protected). The opinion must be clearly recognisable as opinion rather than a statement of fact. The defence can be defeated if the plaintiff proves the opinion was not genuinely held. For consumers reviewing products or services or commentators writing about public matters, this defence is often available — but it requires the opinion to be distinguishable from factual assertion.

A concerns notice formally initiates the pre-litigation process under the Defamation Acts. Upon receiving a concerns notice, you have 28 days to make an offer to make amends — a formal offer that can include a correction, apology, and/or compensation. Making a proper offer to make amends and having it rejected by the plaintiff is a complete defence to the defamation claim in most states. If you intend to defend the claim, you should not respond without legal advice, as how you respond (and whether you make admissions) can significantly affect the outcome and any costs orders made against you.

Section 15 of the uniform Defamation Acts (equivalent provisions in each state) allows a publisher to make a formal offer to make amends to resolve a defamation dispute before it goes to trial. The offer can include a correction, an apology, the removal of the content, and/or payment of compensation and costs. An offer to make amends must be made within 28 days of receiving a concerns notice (or within a longer period if agreed). If the offer is a "reasonable offer" and the plaintiff unreasonably rejects it, this is a complete defence to the claim. The process is designed to encourage early resolution and a properly structured offer can significantly limit a defendant's legal exposure.