Is defamation a crime in NSW?

KEY TAKE-OUTS:

Defamation can be brought though commercial litigation or as a criminal charge under section 529 of the Crimes Act 1900 (NSW).
In addition to the numerous elements that the prosecution must prove beyond reasonable doubt, there are several defences which can be raised to determine whether the defendant had a lawful excuse for their conduct.
The complexities of defamation can be difficult to navigate without professional advice.

Is defamation a criminal offence?

The criminality of defamation is a controversial topic because the competing interests of freedom of speech and protection of reputation can be difficult to balance. Whilst it is typical for defamation to be brought through civil proceedings, under section 529 of the Crimes Act 1900 (NSW), it can also be prosecuted as a criminal matter.

What constitutes criminal defamation?

The criminal offence of defamation involves a person, without lawful excuse, publishing a matter that is defamatory of another living person knowing the matter to be false and intending to cause serious harm to the person or any other person, or being reckless as to whether such harm would be caused.

How do you prove criminal defamation?

In order for the prosecution to secure a conviction, they must prove the following elements beyond reasonable doubt:

The defendant published a matter that was defamatory to another living person,
The defendant intended to cause serious harm to that person or to any other person or were reckless as to whether serious harm would be caused,
The defendant knew the published matter was false, and
The defendant did not have a lawful excuse for your conduct.

Section 529(3) of the Crimes Act 1900 (NSW) stipulates that if found guilty, a person could face up to three years in prison.

What is the difference between criminal defamation and civil defamation?

In a previous Coutts blog by Senior Associate Melissa Care titled ‘Johnny Depp v Amber Heard – Depp-famation Trial’, she explained that defamation is mainly civil in nature however, despite being incredibly rare, in NSW you can also be criminally charged for this offence.

The main difference between these alternate avenues is that if successfully pursued civilly, the defamation could result in monetary penalties however, considering section 529(3) of the Crimes Act 1900 (NSW), a penal sentence may be ordered.

If criminally charged, the Police are required to get approval from the Director of Public Prosecutions before commencing proceedings.

BOCSAR has confirmed that there have not been any charges that were finalised under s 529 of the Crimes Act 1900 (NSW) however, the criminal offence of defamation remains.

What is considered ‘defamatory’ in criminal law?

Pursuant to subsection 529(11), the definition of ‘defamatory’ is the same as that found in the Defamation Act 1995 (NSW). It encompasses the following: “A comment may be considered under this offence if the material was published, identified the person alleging defamation directly or indirectly and had a defamatory meaning.”

It may be considered defamatory if it was likely to cause the person to be shunned, shamed, or avoided by others, adversely affects the reputation of the person, or damages the person’s professional reputation.

When can lawful excuse be used as a defence for criminal defamation?

The defence of ‘lawful excuse’ is contained in subsection 529(4) of the Crimes Act 1900 (NSW) and stipulates that it would be considered a reasonable excuse if the defendant having regard to the circumstances happening before or at the time of the publication, would have a defence for the if the victim had brought the offence under civil proceedings. This means that the civil defences are also relevant for the criminal charge in proving lawful excuse.

The available defences in civil proceedings include;

Justification (s 25)- where the defamatory material is substantially true;
Contextual truth (s 26)- where accusations arising from the context of the material are substantially true;
Absolute privilege (s 27)- the material was published during the proceedings of a parliamentary body;
Public documents (s 28)- the publication was a fair copy, summary, or extract of a public document;
Fair reporting of a matter that is of public concern (s 29);
Qualified privilege (s 30)- the information ascertained was provided to a person in reasonable circumstances;
Honest opinion (s 31)- 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;
Innocent dissemination (s 32)- where the person was an employee and the primary publisher did not know they were publishing defamatory material not due to their own negligence;
Triviality (s 33)- the circumstance of the publication was such that the plaintiff was unlikely to suffer harm.

When the ‘lawful excuse’ defence is raised, the onus of proof then shifts to the prosecution to prove beyond reasonable doubt that the defence does not apply to the specific circumstances.

Criminal and Civil Defamation Lawyers

As highlighted in the brief guide above, defamation can be a very confusing charge to deal with. If you have been charged with defamation, you should seek legal advice as soon as possible. Similarly, if you believe that you have a claim in defamation or want to defend a defamation claim, we advise that you seek legal advice. At Coutts, our criminal law and commercial litigation teams would be happy to assist you.

ABOUT LARA MENON:

Lara Menon joined the Coutts Lawyers & Conveyancers team in August 2018, working within our Criminal and Family Law teams. Her swift advancement from Paralegal, Law Graduate, Lawyer, Senior Lawyer and most recently, Senior Associate in February 2022, is a testament to her astute legal skills and commitment to client service excellence.

Earlier in 2019, Lara was selected by the NSW Law Society to undertake an internship with the NSW Coroner’s Court, working as a Judge’s Associate for the Deputy State Coroner.

For further information please don’t hesitate to contact:

Lara Menon
Senior Associate
info@couttslegal.com.au
1300 268 887

ABOUT ISABEL STRAHAN:

Isabel joined the Coutts team in January 2022, as a Paralegal working within our Family & Criminal teams. She is currently studying a Bachelor of Laws and Bachelor of Arts, Majoring in International Relations and Minoring in Cultural Studies at the University of Wollongong. It is her dedication and hardworking nature that will see her go far within Coutts.