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Criminal Defamation

Criminal Defamation is an offence under Section 529 of the Crimes Act 1900 which carries a maximum penalty of 3 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You published a matter that was defamatory to another living person
  2. You intended by doing so to cause serious harm to that person or to any other person or were reckless as to whether serious harm would be caused
  3. You knew the published matter was false, and
  4. You did not have a lawful excuse for your conduct

A matter is ‘defamatory’ if:

  1. It was published, which means communicated in any way to at least one other person
  2. It identified a person, whether directly or indirectly, and
  3. It had a defamatory meaning, which means it was likely to:
  • cause the person to be shunned, shamed or avoided by others;
  • adversely affect the reputation of the person in the minds of right-thinking members of society; or
  • damage the person’s professional reputation by suggesting a lack of qualifications, skills, knowledge, capacity, judgment or efficiency in the person’s trade, business or profession

‘Lawful excuses’ are:

  1. Justification, which is where the defamatory material is substantially true
  2. Contextual truth, where imputations arising from the context of the material are substantially true
  3. Public documents, where the publication is a fair copy, summary or extract of a public document
  4. Fair reporting of proceedings of public concern, where the matter was of public concern and was already published
  5. Qualified privilege, where the information was provided to a person who has an interest in a subject and was provided to inform the person about the subject and providing the information was reasonable in the circumstances
  6. Honest opinion, where the publication was an honest opinion rather than a statement of fact and related to a matter of public interest and was based on proper material
  7. Innocent dissemination, where the person was an employee or agent of the primary publisher and did not know he or she was publishing defamatory material, and this was not due to his or her negligence, and
  8. Triviality, where the publication was unlikely to cause harm.

If you are able to raise evidence of a lawful excuse, the onus is on the prosecution must then prove beyond reasonable doubt that the excuse does not apply, if the prosecution is unable to do this you must be found not guilty.

Other defences to the charge include:

  1. Self-defence
  2. Duress, and
  3. Necessity

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