What is the Defence of Honest Opinion?
While older versions of legislation included a “fair comment” defence (s 14 of the 1889 Act), the 2005 Act provides a broader defence of honest opinion. In a democracy, it is essential that every member of the public can freely express opinions on matters of public interest. This freedom supports open debate on public policy.
The “fair comment” defence required that the comment be based on factual matter that was substantially true. Even if the defence was based on the honest opinion of the publisher or its agent, it could be defeated if the factual basis was untrue.
The Defamation Act addresses this issue by allowing the “honest opinion” defence to be based on “proper material,” which has a broader interpretation. This defence protects the expression of defamatory opinions honestly held by the author, provided the opinion relates to a matter of public interest.
The defence of honest opinion tries to strike a balance between the plaintiff’s interest in reputation and competing interests in free speech and allows much more freedom to defendants who make defamatory comments than to those who publish untrue defamatory facts. The Harvard Law Review 413 (1910) states:
To prohibit criticism in matters of public interest unless the critic could vouch the truth in fact of his comment would be incompatible with the principles of popular government. Abuses might exist; there might be misconduct on the part of public men; there might be extravagance and corruption; yet no person would venture to speak. Hence the law protects and encourages the interchange of opinion so vital to the conduct of popular government, even though others may believe, and it may subsequently appear, that the imputation was in fact mistaken and unjust.
Elements of the Defence of Honest Opinion
The elements of the defence of honest opinion can be found in section 31 of the Defamation Act 2005 (Qld). Subsection (1) states:
(1) It is a defence to the publication of defamatory matter if the defendant proves that—
(a) the matter was an expression of opinion of the defendant rather than a statement of fact; and
(b) the opinion related to a matter of public interest; and
(c) the opinion is based on proper material.
The starting position for this defence is:
- Opinion, rather than fact.
- Opinion related to a matter of public interest.
- Opinion based on proper material.
We will explain these in more detail below.
Opinion, Rather than Fact
The dictionary defines opinion to mean:
a thought or belief about something or someone.
The dictionary defines fact to mean:
something that is known to have happened or to exist, especially something for which proof exists, or about which there is information.
In Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60 the court determined that, when considering the common law defence of fair comment, the critical issue is whether an ordinary, reasonable reader would perceive the conveyed meaning of the disputed material as a statement of fact or as an opinion. Gummow, Hayne And Heydon JJ saying at [35]:
A “discussion or comment” is to be distinguished from “the statement of a fact”. “It is not the mere form of words used that determines whether it is comment or not; a most explicit allegation of fact may be treated as comment if it would be understood by the readers or hearers, not as an independent imputation, but as an inference from other facts stated.” As the passages quoted from Bingham LJ and Jordan CJ above illustrate, the distinction between fact and comment is commonly expressed as equivalent to that between fact and opinion. Cussen J described the primary meaning of “comment” as “something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, judgment, remark, observation, etc”. It follows that a comment can be made by stating a value judgment, and can also be made by stating a fact if it is a deduction from other facts.
A comment or discussion differs from a statement of fact. The distinction isn’t based on wording alone; an explicit fact can be seen as a comment if understood as an inference from other stated facts.
Essentially, the difference between fact and comment is similar to that between fact and opinion. Comments can include value judgments or facts inferred from other facts.
The issue of construction or characterisation depends on whether an ordinary, reasonable recipient of the communication would interpret the message as a statement of fact or as an expression of opinion.
Opinion Related to a Matter of Public Interest
The opinion must also be in the public interest. The term, “subject to public interest”, appears to convey a broad meaning and will turn on the facts of each case.
The High Court of Australia’s decision in Bellino v Australian Broadcasting Corporation [1996] HCA 47 provides insight into how the Court determines what constitutes a subject of public interest. Here is a summary of what the case says:
- Broad Definition of Public Interest – Subjects of public interest are broadly defined and can include any matter affecting people at large, generating legitimate interest or concern.
- Determination by Judge – The judge, not the jury, determines what constitutes a subject of public interest. This ensures consistent legal standards rather than subjective views.
- Wide and Flexible Concept – The concept of public interest must be broad and flexible to balance the protection of private reputation and public welfare. This allows for the evaluation of contemporary conditions and legal, social, or moral duties.
- Public Conduct and General Matters – Public interest includes the conduct of individuals in public office or those seeking public trust, as well as general political, state, church, judicial, and public institution matters.
- Relevance to Public Interest – The defamatory matter must be relevant and contribute to the public discussion of the subject of public interest. The connection or nexus between the defamatory matter and the public interest subject is crucial.
- Good Faith and Malice – Honest opinion or fair comment must be made in good faith, without malice, and the burden is on the plaintiff to prove the absence of good faith.
- Objective Assessment – The relationship or nexus between the defamatory matter and the subject of public interest is assessed objectively. The relevance of the defamatory matter is considered both by the judge (as a matter of law) and the jury (in terms of malice and good faith). (Paragraphs 29-31)
- Enduring Public Interest – Some subjects have enduring public interest and do not require active public discussion at the time of publication. Publications on such subjects may still attract qualified privilege.
- Public Benefit – The public discussion of the subject must be for the public benefit. While this is a question for the jury, the judge first ensures that the subject is genuinely one of public interest.
In determining what constitutes a subject of public interest in the context of the defence of honest opinion, the High Court of Australia adopts a broad and flexible approach, recognising subjects that affect people at large and generate legitimate concern.
The defamatory matter must be relevant and contribute meaningfully to the public discussion, assessed objectively. Additionally, such comments must be made in good faith, without malice, and for the public benefit, with the burden on the plaintiff to prove the absence of good faith.
This approach balances the protection of private reputation with the necessity of free public discourse on matters of public interest.
Opinion Based on Proper Material
Lastly, the opinion must be based upon proper material.
Subsection (5) of the Defamation Act provides the following:
(5) For the purposes of this section, an opinion is based on proper material if—
(a) the material on which it is based is—
(i) set out in specific or general terms in the published matter; or
(ii) notorious; or
(iii) accessible from a reference, link or other access point included in the matter (for example, a hyperlink on a webpage); or
(iv) otherwise apparent from the context in which the matter is published; and
(b) the material—
(i) is substantially true; or
(ii) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law); or
(iii) was published on an occasion that attracted the protection of a defence under this section or section 28 or 29.
An opinion is based on proper material if the supporting material is either included, well-known, accessible through a link, or clear from context, and the material is either substantially true, published under qualified privilege, or protected by a section 28 (publication of public documents) or section 29 (fair report of proceedings of public concern) of the Defamation Act.
What is substantially true can be found here.
What constitutes qualified privilege can be found here.
Subsection (2) applies to employees or agents:
(2) It is a defence to the publication of defamatory matter if the defendant proves that—
(a) the matter was an expression of opinion of an employee or agent of the defendant rather than a statement of fact; and
(b) the opinion related to a matter of public interest; and
(c) the opinion is based on proper material.
Subsection (3) applies to a third party (the commentator), not the defendant or their employee/agent:
(3) It is a defence to the publication of defamatory matter if the defendant proves that—
(a) the matter was an expression of opinion of a person (the commentator), other than the defendant or an employee or agent of the defendant, rather than a statement of fact; and
(b) the opinion related to a matter of public interest; and
(c) the opinion is based on proper material.
Legal Precedents and Case Studies
The core of Australia’s defamation laws is encapsulated in the various Defamation Acts 2005, which were adopted with variations across different states and territories to ensure a degree of uniformity.
Each state or territory has its own legislation and it’s own section on honest opinion:
- Queensland – Section 31 of the Defamation Act 2005 (Qld).
- New South Wales – Section 31 of the Defamation Act 2005 (NSW).
- Northern Territory – Section 28 of the Defamation Act 2005 (NT).
- South Australia – Section 29 of the Defamation Act 2005 (SA).
- Tasmania – Section 31 of the Defamation Act 2005 (Tas).
- Victoria – Section 31 of the Defamation Act 2005 (Vic).
- Western Australia – Section 31 of the Defamation Act 2005 (WA).
Case Law on the Defence of Honest Opinion
The defence of honest opinion in defamation cases protects statements that are recognised as opinions rather than factual assertions.
For the defence to succeed, the opinion must be based on true or well-known facts, allowing the audience to judge its validity.
The opinion must be one that an honest person could genuinely hold, irrespective of its reasonableness, provided it is not made with malice.
The subject matter must be of public interest, promoting free discussion on relevant issues.
In media contexts, it is crucial to clearly distinguish between fact and comment to ensure opinions are not mistaken for factual claims.
Courts assess whether statements are presented as opinions, based on disclosed facts, and genuinely held, to determine if the defence of honest opinion applies.
Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60
The case of Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60 is a High Court precedent case in relation to the defence of honest opinion in defamation cases.
In this case, Dr. Colin Manock, a forensic pathologist, sued Channel Seven for defamation over a promotional broadcast suggesting he had concealed evidence in a high-profile murder case.
The High Court addressed whether the broadcasted statements could be defended as fair comment or honest opinion.
The High Court found that the promotional statements made by Channel Seven Adelaide about Dr. Manock did not meet the criteria for the defence of honest opinion. The statements were found to be assertions of fact rather than comments based on stated or notorious facts, and thus the defence was not available.
This case also emphasises:
Distinction Between Fact and Comment
The defence hinges on distinguishing between statements of fact and expressions of opinion. For the defence to succeed, the defamatory statement must be recognizable as an opinion rather than a factual assertion. Statements that are presented as facts or are so intermingled with factual content that the reader cannot distinguish them as opinions will not qualify for the defence.
Sufficient Indication of Facts
The facts upon which the opinion is based must be stated, referred to, or be so notorious that the audience can understand the basis of the opinion. This allows the audience to judge for themselves the validity of the opinion. If the underlying facts are not clearly indicated, the opinion cannot be protected by the defence.
Requirement of Honesty
The opinion expressed must be one that an honest person could hold based on the stated or implied facts. It does not have to be reasonable in the objective sense but must be genuinely held. The law protects even obstinate, foolish, or offensive opinions, as long as they are honestly held.
Public Interest
The subject matter of the comment must be of public interest. This encompasses any matter that invites public attention or discussion, including public figures’ conduct and government actions. The defence is designed to promote free discussion on issues that affect the community.
Application in Media
In cases involving media, such as television promotions, the distinction between fact and comment is particularly important. Broadcasts need to make it clear when they are presenting an opinion to avoid the impression that they are stating facts. This is more challenging in television due to the fleeting nature of the content, which viewers cannot re-read or re-examine.
Dutton v Bazzi [2021] FCA 1474
In Dutton v Bazzi [2021] FCA 1474, the plaintiff, Peter Dutton, who was the Minister for Home Affairs in the Australian Government at the time of the alleged defamation, sued the defendant, Shane Bazzi, for defamatory allegations published in a tweet which said:
Peter Dutton says women using rape and abortion claims as ploy to ge… Home Affairs minister says ‘some people are trying it on’ in an attempt to get to Australia from refugee centres on Nauru.
The imputations include that the application condones and excuses rape and the rape of women.
Mr Bazzi pleaded the defence of honest opinion, stating the publication was an expression of opinion, rather than of fact, and was a matter of public interest.
The court decided that the defence of honest opinion had not been established and that a judgment for Mr Dutton in the amount of $35,000 should be entered, concluding at [239]:
In summary, for the reasons set out above, I have found that the Tweet did convey the imputation that Mr Dutton excuses rape; that this was defamatory of Mr Dutton; that Mr Bazzi has not established the statutory defence of honest opinion or the common law defence of fair comment on a matter of public interest; that judgment should be entered for Mr Dutton in the sum of $35,000; and that Mr Dutton’s claim for injunctions should be refused.
This case highlights the complexities surrounding social media defamation in Australia.
Feldman v Polaris Media Pty Ltd t/as The Australian Jewish News (No 2) [2018] NSWSC 1035
In the case of Feldman v Polaris Media Pty Ltd as trustee of The Polaris Media Trust trading as The Australian Jewish News (No 2) [2018] NSWSC 1035, the plaintiff, Rabbi Yosef Feldman, sued the defendants, The Australian Jewish News and Joshua Levi, for defamation that occurred in three articles published in the Australian Jewish News newspaper.
The plaintiff stated that the imputations included that he:
… displayed reprehensible ignorance of the fact that to touch a child for sexual gratification on the genitals was a crime.
The defendants pleaded the defence of honest opinion, among others, denying that the publications contained defamatory content.
In relation to the defence of honest opinion, McCallum J said at [58] and [59]:
I am satisfied that the ordinary reasonable reader would have understood the article to purport to present a factual account of the evidence given by the plaintiff to the Royal Commission together with an expression of the newspaper’s opinion regarding what was revealed by that evidence in the context of the reiteration of the earlier call for the plaintiff to be removed as President of the Rabbinical Council … Specifically, the reader would have understood the article to be stating, as fact, that the plaintiff admitted in evidence to the Royal Commission “that even though he was director of a school he didn’t realise it was illegal to touch a child’s genitals” and to be expressing the opinion, based on the matters reported (including that purported fact), that, in saying so, the rabbi had displayed a measure of ignorance which, in the circumstances, was reprehensible. For those reasons, I am satisfied that the first article, in its defamatory meaning as found, was an expression of opinion of the first defendant rather than a statement of fact.
Ultimately, the court ruled in favour of the defendants. The judge stated:
The consequence of my findings as to the defences of honest opinion and justification is that there must be judgment in favour of the defendants.
The plaintiff later appealed this decision in [2020] NSWCA 56, but the subsequent court dismissed the appeal.
Noone v Brown [2019] QDC 133
In the case of Noone v Brown [2019] QDC 133, Maxine Noone, the plaintiff, sued Heather Mansell Brown, the defendant, for defamation that occurred in a Facebook post. The plaintiff was employed at a Retirement Village and cared for the retired residents.
The imputations made included that Noone was an incompetent worker, was often intoxicated while on duty, and that she was dismissed from her previous job due to a problem with alcohol.
The defendant relied upon the defence of honest opinion, among several others, stating that “expressions of opinion, observations, conclusions or criticism rather than statements of fact”.
The court found that Brown’s statements were defamatory, not protected by the honest opinion defence, as they were presented as factual claims without sufficient basis. Smith DCJA said:
I have found the defendant published a number of defamatory imputations of and concerning the plaintiff … I find the defences fail as to the following imputations:
(a) The plaintiff was dismissed from her previous job and escorted off the premises because she had a problem with alcohol.
(b) The plaintiff was dismissed from her previous job because she was responsible for narcotic drugs going missing.
(c) The plaintiff was unfit to hold the position of Director of Nursing at MCRV because she was dismissed from her previous job because she had a problem with alcohol or was responsible for narcotic drugs going missing.
Brown was ordered to pay $15,000 in damages to Noone.
O’Brien v Australian Broadcasting Corporation [2017] NSWCA 338
In O’Brien v Australian Broadcasting Corporation [2017] NSWCA 338, the appellant and plaintiff, Natalie O’Brien, sued the defendant and respondent, Australian Broadcasting Corporation (ABC), for defamation that occurred in a programme published by ABC.
The plaintiff claimed the programme contained several defamatory imputations, including that she engages in trickery in her journalism, creates unnecessary concern in the community, and acts irresponsibly in her profession as a journalist [Headnote: a, b, c]. The defendants claimed several defences, including the defence of honest opinion.
The judge of the original case ruled in favour of the defendant, stating that:
two imputations were expressions of opinion, which were based on facts truly stated or sufficiently identified within the Media Watch programme.
The plaintiff appealed the judgement, stating the judge erred in several ways, including finding the defence of honest opinion to have been fulfilled. The court agreed with the initial ruling, stating the defence of honest opinion had been made out effectively, stating:
The appellant’s challenge to her Honour’s finding that this defence was established also fails for the reasons set out in relation to fair comment … Accordingly, the appellant’s challenge to the primary judge’s conclusion that the ABC established the fair comment/honest opinion defences should be rejected.
As a result, the appeal was dismissed.
Challenges and Complexities – Defence of Honest Opinion
One of the primary challenges in the defence of honest opinion is distinguishing between statements of fact and expressions of opinion. This distinction is critical because the defence protects opinions but not false statements of fact.
The High Court in Channel Seven Adelaide Pty Ltd v Manock emphasised that the determination hinges on whether an ordinary, reasonable reader would perceive the disputed material as a statement of fact or as an opinion.
Explicit factual allegations may sometimes be treated as opinions if understood as inferences from other stated facts. The complexity arises when the lines blur, making it difficult for courts to decide if a statement was meant as an opinion or a fact.
Legal Challenges in Establishing the Defence
Establishing the defence of honest opinion involves several legal hurdles:
- Factual Basis: The opinion must be based on proper material, which includes substantially true facts or facts published on an occasion of privilege. This requirement ensures that opinions are not unfounded, but it also places a burden on the defendant to prove the factual basis of their opinion.
- Public Interest: The opinion must relate to a matter of public interest. Determining what constitutes public interest can be subjective and varies with each case. Courts adopt a broad and flexible approach, considering whether the subject matter affects the public at large and generates legitimate concern.
- Honesty of Opinion: The opinion must be genuinely held by the defendant. Courts assess whether the opinion could be honestly held based on the facts available. This assessment does not consider the reasonableness of the opinion but rather its genuineness.
The complexities of these legal challenges mean that defendants must navigate carefully to establish that their statements are indeed opinions based on proper material and related to matters of public interest.
The Impact of Malice on the Honest Opinion Defence
Malice can significantly impact the defence of honest opinion. If it is proven that the opinion was expressed with malice, the defence fails. Malice, in this context, refers to the intention to cause harm or with reckless disregard for the truth. The burden of proving malice lies with the plaintiff.
In Bellino v Australian Broadcasting Corporation, the High Court highlighted that comments must be made in good faith, without malice. The absence of good faith can nullify the defence, even if the other elements are satisfied. This requirement ensures that the defence of honest opinion is not misused to shield defamatory statements made with malicious intent.
The interplay between malice and honest opinion adds another layer of complexity, as courts must delve into the defendant’s intentions and motivations behind the statements. Proving or disproving malice involves examining the context and manner in which the opinion was expressed, making it a challenging aspect of defamation law.
The defence of honest opinion in defamation cases is fraught with challenges and complexities. Distinguishing between fact and opinion, meeting legal requirements, and addressing the impact of malice are significant hurdles. These factors collectively ensure a careful balance between protecting reputations and promoting free speech on matters of public interest.
The Role of the Internet and Social Media
The advent of the internet and social media has revolutionised public commentary, providing a platform for individuals to express opinions and engage in debates on a global scale; or for posting defamatory online reviews. This digital age has democratised speech, allowing anyone with an internet connection to publish their thoughts on various issues, from political affairs to personal experiences.
The widespread use of platforms like Twitter, Facebook, and blogs has blurred the lines between traditional journalism and citizen journalism, leading to an explosion of user-generated content.
While this shift has empowered voices and promoted transparency, it has also increased the incidence of defamation cases, as more people share their opinions without fully understanding the legal implications.
How the Honest Opinion Defence Applies to Online Publications
The principles of the honest opinion defence apply equally to online publications as they do to traditional media. However, the unique nature of the internet presents specific challenges and considerations, as mentioned in this article:
- Opinion vs. Fact
- Public Interest
- Proper Material
- Malice
The rise of the internet and social media has significantly impacted public commentary and defamation law. The honest opinion defence applies to online publications, but the unique nature of digital communication introduces additional complexities.
Recent cases highlight the challenges in distinguishing between fact and opinion, establishing proper material, and assessing malice in the online context.
As the digital landscape continues to evolve, so too will the legal frameworks govern online speech and defamation.
Defence of Honest Opinion – Key Takeaways
The main takeaways in relation to the defence of honest opinion are:
- Broader Scope of Honest Opinion – The honest opinion defence under the Defamation Act 2005 allows for opinions based on a wider range of proper material, compared to the older “fair comment” defence.
- Essential Elements – The defence hinges on the opinion being distinguishable from fact, related to a matter of public interest, and based on proper material.
- Public Interest – The opinion must address issues of public concern, which are broadly defined and determined by judges, not juries.
- Proper Material – Opinions must be supported by substantial truth, privileged publications, or other proper material accessible to the audience.
- Impact of Malice – Proving malice can defeat the defence, highlighting the necessity of expressing opinions in good faith without intent to harm.
- Internet and Social Media – The digital age has increased the complexity of applying the honest opinion defence due to the rapid spread and mix of opinions and facts online.
FAQs about Honest Opinion Defence
The defence of honest opinion in defamation law involves various intricacies and challenges, especially in distinguishing between fact and opinion and navigating the impact of malice.
Below are some frequently asked questions and their answers to help clarify key aspects of this legal defence.
What is the defence of honest opinion?
The defence of honest opinion protects individuals who express opinions on matters of public interest, provided the opinion is based on proper material.
How does honest opinion differ from fair comment?
Honest opinion allows for broader protection by permitting opinions based on proper material, whereas fair comment required comments to be based on substantially true factual matter.
What constitutes “proper material”?
Proper material includes facts set out in the published matter, notorious facts, material accessible via links, or contextually evident information.
What is the significance of public interest in this defence?
The opinion must relate to matters affecting the public at large, generating legitimate interest or concern, which is crucial for the defence to apply.
Can the defence be used if the opinion is malicious?
No, the defence is defeated if the opinion is expressed with malice, meaning with the intent to cause harm or with reckless disregard for the truth.
How does the internet affect the application of this defence?
The internet complicates the defence due to the rapid dissemination of mixed opinions and facts, making it harder to distinguish between the two.
What are some legal challenges in establishing the defence?
Challenges include proving the opinion’s factual basis, its relevance to public interest, and its honest nature without malice.
How do courts determine if a statement is fact or opinion?
Courts assess whether an ordinary, reasonable reader would interpret the statement as a fact or an opinion, considering the context and presentation.
What is the role of context in determining proper material?
Context helps establish whether the supporting material for the opinion is evident, accessible, or widely known, fulfilling the requirement of proper material.
Are opinions on social media protected under this defence?
Yes, but the same principles apply: the opinion must be based on proper material, relate to public interest, and be expressed without malice.
What are some notable cases involving this defence?
Significant cases include Channel Seven Adelaide Pty Ltd v Manock, Dutton v Bazzi, and Noone v Brown, highlighting various aspects of the defence.
How does the defence apply to employees or agents?
The defence applies if the opinion expressed by an employee or agent meets the criteria of being an opinion, related to public interest, and based on proper material.
What happens if the opinion is based on untrue facts?
The defence fails if the opinion is based on untrue facts, as proper material must be substantially true or otherwise privileged.
Can the defence be used in media contexts?
Yes, but media outlets must clearly distinguish between opinion and fact to avoid confusion and ensure the defence applies.
What is the impact of malice on the defence in online publications?
Malice can nullify the defence in online contexts, where the intent behind the opinion and the way it is expressed are scrutinized for harmful intent.
