Defamation and reform of the statutory defence of contextual truth

This article addresses the reform of the statutory defence of contextual truth in defamation matters in NSW.Since the Defamation Act 2005 (‘the Act’) replaced the Defamation Act 1974 (repealed), (‘the 1974 Act’), courts have laboured over the proper construction of the statutory defence of contextual truth, found in s 26 of the Act.

What is the statutory defence of contextual truth?

To establish defamation, a plaintiff must prove that the defendant published defamatory matter concerning the plaintiff to another person. However, there are a number of defences which the defendant may then attempt to establish to escape liability. e.g. proving the defamatory imputations conveyed by the matter of which the plaintiff complains are ‘substantially true’ (s 25).

However, in an action for defamation, the plaintiff decides which imputations to complain (and not to complain) about. Therefore, hypothetically, if:

• the matter imputed that the plaintiff: occasionally disobeys public car parking regulations (‘the less defamatory imputation’); and, also, is a serial child rapist (‘the more defamatory imputation’ – a different kind of ‘sting’); and
• the plaintiff anticipates the defendant is likely to be able to prove the truth of the more defamatory imputation but is unlikely to be able to prove the truth of the less defamatory imputation,

then the plaintiff might well only complain of the less defamatory imputation (and plead nothing with respect to the more defamatory imputation). This scenario was perceived to potentially cause unjust results because the defendant could become liable despite the fact that the plaintiff’s reputation would not be further harmed by the less defamatory imputation in view of the (truthful) more defamatory imputation.