In defamation cases, once the plaintiff establishes:

• That a publication has occurred;
• That the publication identifies the plaintiff; and,
• The publication is defamatory;

the law will presume both falsity and damage to reputation. If no defences are deployed or if the defences fail, the defendant will be found liable in defamation, subject to an assessment of the damages by the Court.

Common defences

There are numerous defences available to a defendant under both the Defamation Act 2005 (WA) and those which have been recognised by the Court.

Common defences include:

• Truth or justification – where a defendant is able to prove that the imputations are either true or substantially true;
• Honest opinion or fair comment – where a defendant is able to prove:
• that the imputation was a statement of the publishers opinion or a comment;
• the matter related to a matter of public interest;
• the imputation was based on proper material which is true or published under circumstances of qualified privilege (explained below); and,
• the objectively fair or proper material is stated or indicated in the publication or sufficiently notorious.
• Qualified privilege – this defence serves to protect communication where there is a reciprocal duty on the person publishing the matter and on the recipient to receive the material. This defence tends to fail where there are potentially large audiences where the requisite relationship becomes more tenuous, or, if the publisher was actuated by malice. 

There are other defences available. A defamation lawyer should be engaged for the purposes of identifying all applicable defences and providing you with advice as to their merits.