The Offence of Criminal Defamation in New South Wales

Defamation is a complex issue and it can be difficult to navigate without professional legal advice. High-profile defamation cases have been in the headlines and defamation in itself is a controversial topic and the criminality of this controversial topic even more so. Freedom of speech and the protection of a reputation can be difficult to balance. Any person, even public figures, can be liable for defamation charges. 


Defamation can be tried through civil proceedings or as a criminal charge under section 529 of the Crimes Act 1900 (NSW). The prosecution has to prove various elements in a defamation case and the defence has to prove the defender had a lawful excuse for their conduct. 

The Offence of Criminal Defamation

A defendant can face significant monetary penalties through civil proceedings for posting defamatory content without a valid defence. This conduct will however not result in a potential prison sentence. However, a section of New South Wales criminal law when invoked presents the possibility of sending a person to prison for defaming another. 


Defamation in NSW can be brought through civil proceedings or under Section 529 of the Crimes Act 1900 (NSW) where it can be prosecuted as a criminal matter. Section 529(3) of the Crimes Act 1900 (NSW) presents criminal defamation as a criminal offence punishable by a maximum of three years in prison if a person publishes defamatory statements or material of another person or any other person, or is reckless of harm the published statements or material can cause without a lawful excuse.

The Case of Proving Criminal Defamation

Subsection 529 (7) of the Crimes Act stipulates that the proceedings for criminal defamation can only be brought with the consent of the NSW Director of Public Prosecutions. The prosecution has to prove the following beyond a reasonable doubt to establish the offence and secure a conviction:


·        The defendant published a matter that was defamatory to another person,

·        The defendant intended to cause serious harm to the person or any other person

·        The defendant was reckless as to whether serious harm would be caused

·        The defendant knew the published material was false

·        The defendant does not have a lawful excuse for their conduct or for the publication of the defamatory material


The prosecution or the party claiming defamation has to prove that defamatory information was published either orally or in writing. The prosecution also has to prove that an ordinary person would also consider the material that was published as defamatory and that the person claiming defamation can be identified in the material that was published. 


Section 529 (3) of the Crimes Act 1900 (NSW) stipulates that with a guilty verdict for criminal defamation a person can be sentenced to three years in prison. However, a person has not been charged or is unlikely to be charged with criminal defamation, although the threat of a criminal charge for defamation and imprisonment is still a possibility under the law in NSW.  


What can be considered Criminal Defamation?


In the past, there were two different and separate types of defamation in NSW – slander, and libel. Slander was considered when a person defamed another person orally and libel was considered when a person defamed another person in writing. However, this distinction between slander and libel as two forms of defamation is not important anymore and the use of these terms has been abolished in NSW. Defamation is seen as defamation and nothing else. Uniformed defamation laws were adopted and deformation is governed by the Defamation Act 2005 (NSW). The uniform laws were enacted in 2006 and this resulted in relatively consistent defamation laws in each State and Territory. The laws governing defamation in Australia are now mostly the same. 


Defamation is mainly civil, but in NSW a person can also be criminally charged for this offence. The main difference between criminal and civil defamation is:


·        If a case is pursued civilly monetary penalties will apply

·        Criminal defamation according to Section 529(3) of the Crimes Act 1900 (NSW) can lead to a prison sentence

In accordance with Subsection 529(11) and the Defamation Act 1995 (NSW), defamation can be described as a matter that is defamatory if:


·        The matter was published or communicated in any way to at least one other person

·        It identified the person, whether directly or indirectly

·        It had a defamatory meaning, it is likely to


§ Cause the person to be shunned, shamed, or avoided by others

§ Unfavourably affect the reputation of the person in the minds of the public

§ Damage the person’s professional reputation


In a nutshell, defamation refers to something said or written by one person which negatively affects the reputation of another person, and the defamatory comments said or written are not true or are unsubstantiated. A statement or material may be considered defamatory if it was likely to cause the person to be rejected, or disgrace a person, or if the person is avoided by others, the reputation of the person is adversely affected, or the person’s professional reputation is damaged. 


The criminal offence of defamation occurs when a person, without a lawful excuse publishes (either orally or in writing) a statement or material that is defamatory, untrue, and harmful to the reputation of another person. The person knows the matter is false and in doing so intends to cause serious harm to the person or is reckless as to whether such harm would be caused. 


Defamatory material can be any kind of communication that has been published. Under the defamation law, this can include written material, pictures, or spoken statements and it can also include social media posts, comments, and replies.

Who can Sue for Defamation?

Anybody in Australia can sue for defamation. A person does not have to be a public figure or a celebrity. Australia is seen as the defamation capital of the world. Defamation laws exist to protect people from damaging statements attacking a person’s reputation or character. 


An individual, an organisation that does not seek profit or a company with less than ten employees can sue for defamation. A defamation claim cannot be brought on behalf of a deceased person. Larger companies can sue for defamation over untrue and damaging statements under the laws about misleading and deceptive conduct. 


A person can sue the person or the company that made the statement or any other person or company that repeated the statement. More than one person or an entity can be sued for the same publication, for example, a journalist and the publication he or she works for. A defamation claim cannot be brought against a deceased person. 


Recent amendments were added under Section 10 of the Defamation Act NSW. The addition stipulates the requirement to establish that the publication has caused or is likely to cause serious harm to the reputation of a person or entity. The entity must have suffered or will likely suffer serious financial loss. The purpose of this amendment aims to disqualify frivolous claims for defamation. 


Making or repeating a defamatory statement is known as publishing the statement in defamation law. Publishing includes any repeating or spreading of the statement or material, for example, telling someone else, broadcasting the statement on television, or posting it on any social media platform. A person can sue anyone regardless of who is attacking their reputation or character. 


Lawful Excuse as a Defence for Criminal Defamation


Subsection 529(4) of the Crimes Act 1900 (NSW) contains the defence of lawful excuse and it provides that:


“A defendant in proceedings for an offence under this section has a lawful excuse for the publication of defamatory matter about the victim if, and only if, the defendant would, having regard only to the circumstances happening before or at the time of the publication, have had a defence for the publication if the victim had brought civil proceedings for defamation against the defendant.”


The following defences can be presented:


·        Justification – the defamatory material is substantially true (s 25)

·        Contextual truth – accusations arising from the context of the material are substantially true (s 26)

·        Absolute privilege – the material was published during the proceedings of a parliamentary body (s 27)

·        Public documents – the publication was a fair copy, summary, or extract of a public document (s 28)

·        Fair reporting of a matter that is of public concern (s 29)

·        Qualified privilege – the information ascertained was provided to a person in reasonable circumstances

·        Honest opinion – the publication was an honest opinion rather than a statement of fact, that was related to a matter of public interest and based on proper material (s 31)

·        Innocent dissemination – where the person was an employee and the primary publisher did not know they were publishing defamatory material, not due to their negligence (s 32)

·        Triviality – the circumstance of the publication was such that the plaintiff was unlikely to suffer harm (s 33)

·        Responsible communication in the public’s interest. This defence was introduced in 2021


The following defences to the charge can include:


·        Self-defence

·        Duress

·        Necessity


Duress is also a legal defence to the charge. The defendant can argue that they or another person close to the defendant were threatened with serious harm unless the person engaged in this conduct. The threat was front of mind during the misconduct and it was serious enough to justify the misconduct and it was continuing rather than momentary. 

The prosecution has to prove beyond a reasonable doubt that the “lawful excuse “defence does not apply to the specific circumstances when raised as a defence. The defendant will be found not guilty if the prosecution is unable to do so. 


Limitation Periods for Defamation Claims


A defamation claim must be made within one year of the date of publication or statement of the defamatory material under The Limitation Act 1969. This limit may be extended in some circumstances if it was not reasonable for the plaintiff to have commenced an action within one year. The limitation period for defamation claims can be extended to three years. 


Concern Notices


The Defamation Act 2005 (NSW) provides a resolution of a dispute and to avoid Court. This process allows the publishers of defamatory material to make amends to the person who has allegedly been defamed. Under Sections 12A and 12B, an aggrieved person must send the publisher a concerns notice. This notice sets out their grievance, the allegations and the evidence about the defamation. 


The purpose of the concern notice is to offer the publisher the opportunity to make an offer of amends. The publisher has 28 days to respond to this notice with an offer to make amends and defamation proceedings cannot be commenced until after the 28 days.


Offer to Make Amends


The publisher can respond with an offer to make amends as per Sections 13 and 14 of the Defamation Act 2005 (NSW) within 28 days. This offer should include an offer to publish a correction and to pay for expenses incurred by the aggrieved party. It may also offer to pay the aggrieved person a further amount or an apology. An apology, if made, is not to be taken as evidence of liability and cannot be used in Court against the publisher. 


If the aggrieved person does not accept the offer and the offer was reasonable, then the offer can be used as part of the defence in the defamation proceedings. If the aggrieved person accepts the offer, then further defamation proceedings relating to that publication cannot be pursued. 


Claim for Loss or Damages


The Court will aim to restore the aggrieved to the position they would have been in had there been no publication. There are two types of loss for which an aggrieved person can claim:


§ Economic loss – this includes loss of income or revenue

§ Non-economic loss – pain, suffering, or mental anguish


The amount of damages that can be claimed for non-economic loss set by Section 35(5) of the Defamation Act 2005 (NSW) is limited to $250,000. Section 34 of the Act ensures the Court awards damages for defamation that are appropriate and not unreasonably high. It ensures an appropriate and rational relationship between the harm sustained by the aggrieved and the damages rewarded. 


Defamation cases can be complex. Be sure to contact an expert criminal defence lawyer to assist you with your defamation case and get your reputation or your money back.  

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  • Mohammad Khan | Criminal Defence Lawyer

    Mohammad Khan is the Principal Solicitor of Lyons Law Group. After graduating with a Bachelor of Aviation from the University of New South Wales, Mohammad took a keen interest in the law. He began training in criminal law under the tutelage of Australia’s leading criminal lawyer Adam Houda and studied law at the University of Sydney.