Defamation law is designed to protect individuals from the harm caused by false statements about their reputation. However, the law also recognizes that freedom of expression is essential in a democratic society, and as such, there are certain defences that may be available to a person accused of defamation.
One such defence is the honest opinion defence, which allows for the expression of opinions on matters of public interest, provided they meet certain requirements.
In this blog post, I examine the elements of the honest opinion defence, drawing on the recent case of Kumova v Davison (No 2) [2023] FCA 1 and other relevant cases.
Elements of the Honest Opinion Defence
According to the Defamation Act and common law principles, as articulated in cases such as Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15 and Dutton v Bazzi [2021] FCA 1474, the honest opinion defence requires the defendant to establish the following:
The matter would have been understood by the ordinary reasonable reader to be an expression of the defendant's opinion (s 31(1)(a)).
The defendant's opinion related to a matter of public interest (s 31(1)(b)).
The defendant's opinion was based on proper material (s 31(1)(c)), meaning that: (a) the opinion was based on facts stated or sufficiently referred to in the relevant matter; (b) all such facts were substantially true at the time of publication; and (c) there was a sufficient rational connection between such facts proved to be true and the opinion.
Expression of Opinion
In determining whether a matter constitutes an opinion or a statement of fact, the court assumes the perspective of the ordinary reasonable person.
An opinion is generally seen as a conclusion, judgment, or observation, and is often based on stated facts.
The distinction between fact and opinion is not always clear-cut and may require careful analysis by the court, as seen in cases like Molan v Dailymail.com Australia Pty Ltd [2022] FCA 1004 and John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164.
Matter of Public Interest
An opinion must relate to a matter of public interest in order to qualify for the honest opinion defence. This element ensures that the defence does not apply to purely private matters or disputes.
Based on Proper Material
The opinion must be based on proper material, meaning that it should be grounded in facts that are stated or sufficiently referred to in the matter, substantially true at the time of publication, and have a rational connection to the opinion.
This requirement ensures that opinions are not based on false or irrelevant information, and that there is a justifiable basis for the opinion.
Key take-aways
The honest opinion defence in defamation law seeks to balance the protection of individual reputations with the freedom of expression by allowing for the expression of opinions on matters of public interest, provided they meet certain criteria.
Understanding these elements and their application in cases like Kumova v Davison (No 2) [2023] FCA 1, Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15, Dutton v Bazzi [2021] FCA 1474, Molan v Dailymail.com Australia Pty Ltd [2022] FCA 1004, and John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164 is essential for defamation lawyers and their clients when considering the honest opinion defence.
Cases referred to in this blog:
The cases mentioned in the blog post, listed in reverse date order, are as follows:
Kumova v Davison (No 2) [2023] FCA 1
Molan v Dailymail.com Australia Pty Ltd [2022] FCA 1004
Dutton v Bazzi [2021] FCA 1474
Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15
John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164