1. Introduction and Overview
The defence of contextual truth represents a significant component of Australia's defamation law framework. This defence acknowledges the complex reality that defamatory publications often contain multiple imputations of varying veracity. It provides defendants with a means to defeat defamation actions even where some statements are false, provided the publication's overall truth outweighs any false elements it contains.
The contextual truth defence operates on the principle that a plaintiff's reputation should not receive legal protection against false imputations when other substantially true imputations in the same publication have already damaged that reputation to such an extent that the false imputations cause no incremental harm. Unlike partial justification (which merely mitigates damages), contextual truth constitutes a complete defence if successfully established.
This chapter examines the statutory basis, elements, procedural requirements, and practical application of the contextual truth defence with particular focus on its operation in Western Australia, where significant jurisdictional differences exist compared to other Australian states and territories.
2. Statutory Framework in Western Australia
2.1 Section 26 of the Defamation Act 2005 (WA)
In Western Australia, the contextual truth defence is enshrined in section 26 of the Defamation Act 2005 (WA), which provides:
26 Defence of contextual truth
(1) It is a defence to the publication of defamatory matter if the defendant proves that—
(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true; and
(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.
This provision formed part of the uniform defamation legislation adopted across Australian jurisdictions in 2005, which sought to harmonize defamation law throughout the country. However, it is important to note that Western Australia has not adopted the 2020-2021 uniform defamation law amendments (Stage 1 reforms) that have been implemented in other jurisdictions such as New South Wales, Victoria, Queensland, South Australia, Tasmania, and the Australian Capital Territory.
2.2 Distinction from Other Jurisdictions
The 2020 amendments, which Western Australia has not adopted, introduced a significant modification to the contextual truth defence through section 26(2), which explicitly states:
The contextual imputations on which the defendant may rely to establish the defence include imputations of which the plaintiff complains.
This amendment was designed to address limitations in the original formulation of the defence that had been identified through judicial interpretation. The absence of this provision in Western Australia's legislation means that the contextual truth defence operates more restrictively in this jurisdiction compared to those that have adopted the 2020 amendments.
In practical terms, this means defendants in Western Australia cannot "plead back" the plaintiff's own imputations as contextual imputations, creating significant strategic and procedural differences in how the defence operates.
3. Elements of the Defence
To successfully invoke the defence of contextual truth in Western Australia, a defendant must establish two key elements:
3.1 Substantially True Contextual Imputations
The first element requires the defendant to prove that the publication carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations that are substantially true.
Key aspects of this element include:
Separate imputations: The contextual imputations must be separate from those complained of by the plaintiff. Under the unamended WA provision, these must be "other imputations" beyond those the plaintiff has pleaded.
Substantial truth: The defendant must prove that these contextual imputations are substantially true on the balance of probabilities. Courts recognize that absolute truth may be difficult to establish; minor inaccuracies will not defeat the defence if the "sting" or substantial meaning of the imputation is true.
3.2 No Further Harm to Reputation
The second element requires the defendant to demonstrate that the defamatory imputations complained of do not further harm the plaintiff's reputation because of the substantial truth of the contextual imputations.
Key aspects of this element include:
Comparative assessment: This involves a qualitative assessment of the reputational impact of the imputations complained of against the backdrop of the contextual imputations.
Zero incremental harm: The test is whether, given the truth of the contextual imputations, the false imputations complained of cause any additional damage to the plaintiff's reputation. If the contextual imputations are of such gravity that the false imputations do not materially worsen the plaintiff's reputation, the defence will succeed.
Balancing exercise: The tribunal of fact (judge or jury) must weigh the gravity of the true imputations against the gravity of the false ones to determine if the latter add anything to the reputational harm.
4. Judicial Interpretation and Key Case Law
The interpretation and application of the contextual truth defence have evolved through judicial consideration in several significant cases. While many of these cases were decided in other jurisdictions, they provide valuable guidance for Western Australian courts in applying the defence.
4.1 The Whole Publication Approach
In Herald & Weekly Times Ltd & Bolt v Popovic [2003] VSCA 161, Gillard AJA established a fundamental principle regarding the contextual truth defence:
"The whole libel that is all the defamatory imputations must be proved as true; it is no defence to prove that part of the defamatory libel is true. The publisher must prove the truth of the defamatory sting."
This principle was reinforced in Besser v Kermode [2011] NSWCA 174, where the court held:
"A defence of contextual truth must defeat the whole defamatory matter (cause of action) of which the plaintiff complains, that is to say all of the plaintiff's stings."
These cases emphasize that the defence must address the entirety of the defamatory matter being complained of, not just portions of it. The contextual truth defence operates at the level of the publication as a whole, not each imputation in isolation. The aim is to defeat the claim entirely, rather than to excuse or justify individual statements.
4.2 The "In Addition To" Requirement
The most significant limitation of the original s 26 (which still applies in WA) was clarified in Besser v Kermode [2011] NSWCA 174. The NSW Court of Appeal confirmed that s 26 (as unamended) "did not permit a defendant to plead back a plaintiff's imputations" as the contextual truths. The court strictly interpreted the phrase "in addition to the imputations of which the plaintiff complains" to mean the defence is only available if the defendant has some extra imputation apart from those the plaintiff has pleaded.
Subsequently, cases such as Mizikovsky v Queensland Television Ltd (QCA 2013) similarly noted that plaintiffs could neutralize contextual truth by adopting the defendant's contextual imputations into their claim, effectively disarming the defence before trial.
4.3 Separate and Distinct Imputations
For the contextual truth defence to succeed, the contextual imputations must be sufficiently separate and distinct from the imputations complained of by the plaintiff. The test applied to determine whether a particular imputation is sufficiently separate and distinct is whether it is "substantially separate" and "self-contained" as opposed to being "merely one ingredient of a component whole which, when taken as a whole, conveys an imputation which is not conveyed by a part or parts of the publication taken separately."
This requirement ensures that defendants cannot simply reformulate the plaintiff's imputations to establish the defence. The contextual imputations must present a separate narrative substantiated by evidence.
4.4 Successful Applications of the Defence
Under the original s 26, successful invocations of contextual truth were relatively rare, except in cases where plaintiffs neglected to plead certain meanings. For instance, in Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369, the defence of contextual truth succeeded against the sole remaining imputation in issue – effectively because the proven truth of other allegations in the broadcast neutralised the sting of that last imputation.
By contrast, in Holt v TCN Channel Nine (2012/2014), the defence was run but ultimately failed – the jury evidently found that the false imputations (such as that the plaintiff wanted his wife to die) did add something to the harm beyond the proved truths. Nevertheless, as noted, Holt received only nominal damages, demonstrating how proven truths can significantly mitigate damages even when contextual truth fails as a complete defence.
5. Procedural Requirements and Pleading Strategy
5.1 Pleading the Defence
A defendant wishing to invoke contextual truth in WA must plead it as a distinct defence in the defence pleading, typically in the alternative to a justification defence. The requirements for pleading and particularization are set out in the Rules of the Supreme Court 1971 (WA), which broadly align with the uniform civil procedure rules in other jurisdictions.
The pleading should include:
Identification of contextual imputations: The defence must clearly set out the particular imputation(s) said to be conveyed by the matter that are not among those the plaintiff alleges. These should be pleaded with the same degree of precision as any defamatory imputation.
Particulars of substantial truth: The defendant must plead and provide particulars of facts or evidence that will be relied on to prove the substantial truth of each contextual imputation.
No further harm assertion: The pleading should assert that, by reason of the substantial truth of these contextual imputations, the plaintiff's reputation was not further harmed by the defamatory imputations complained of.
Distinctiveness from plaintiff's imputations: In Western Australia, contextual imputations must be clearly differentiated from the plaintiff's pleaded imputations, given the requirement that they be "in addition to" those complained of.
Failure to comply with these pleading requirements may result in the defence being struck out.
5.2 Plaintiff's Strategic Responses
Under Western Australia's procedures, a plaintiff may respond to a contextual truth plea in several ways:
Reply: A plaintiff might file a Reply if there is some affirmative answer, though usually truth is a matter for the defendant alone.
Strike-out applications: More commonly, plaintiffs will attack the contextual truth plea via interlocutory applications, seeking to strike out a contextual imputation on the basis that it is not capable of arising or is insufficiently distinct from the pleaded imputations.
"Pleading back" or appropriation: A strategic option for plaintiffs in WA is to seek to amend their Statement of Claim to add any defamatory meaning the defendant labels as a contextual imputation, effectively absorbing it into the plaintiff's case and nullifying the "additional" context. In Besser v Kermode, Justice Simpson (at trial) noted the potential for injustice if a plaintiff appropriates a true imputation purely to strip the defendant of a contextual truth defence. However, the Court of Appeal confirmed that under the 2005 wording, the defence strictly requires the imputations to be "in addition" to those complained of. Therefore, if a plaintiff does adopt the would-be contextual imputations into the claim (with leave of the court), the defendant cannot rely on them as context in WA's current framework. Courts may be cautious about allowing late amendments that appear calculated solely to undermine a defence; the timing and overall justice of the case will be considered.
5.3 Jury Considerations
At trial, the contextual truth defence is determined by the jury (if there is a jury) or by the judge in a bench trial. In Western Australia, either party may elect for a jury trial in defamation, although in practice many cases (especially in the WA Supreme Court) proceed without a jury.
If tried by jury, the issues are usually divided as follows:
Truth of the contextual imputations: The jury will be asked to decide whether each contextual imputation pleaded by the defendant is substantially true on the balance of probabilities. If the jury finds none of the contextual imputations true, the defence fails immediately.
"No further harm" question: If at least one contextual imputation is found true, the jury must assess whether the additional harm caused by the remaining false imputation(s) is negligible or non-existent. This requires them to weigh the gravity of the true imputations against the gravity of the false ones.
The trial judge must craft jury questions or directions to reflect this two-stage process. For example:
Are one or more of the following contextual imputations substantially true? If so, identify which ones.
If one or more contextual imputations are true, do the defamatory imputations complained of cause any further harm to the plaintiff's reputation because of the substantial truth of the contextual imputations?
It is the defendant's burden to persuade the jury (or judge) on both points.
6. Comparison: 2005 Contextual Truth vs 2021 Amendments
6.1 Key Differences in the Amended Provision
The 2020 Amendment Act (Stage 1 reforms) introduced a revised s 26 (enacted in NSW, Victoria, Queensland, South Australia, etc., from 1 July 2021). Western Australia has not yet adopted these amendments and continues with the original text, but it is important for WA judges and practitioners to understand the differences.
The most significant change in the amended provision is the addition of subsection (2), which states: "The contextual imputations on which the defendant may rely to establish the defence include imputations of which the plaintiff complains."
This amendment explicitly enables defendants to "plead back" the plaintiff's own imputations as contextual imputations, addressing the limitation identified in Besser v Kermode. The requirement for contextual imputations to be "in addition to" the plaintiff's imputations was effectively removed.
6.2 Practical Impact of the Differences
The practical effect of this difference is substantial:
Under the 2005/WA law: Defendants cannot use the plaintiff's pleaded imputations as contextual imputations because they are not "in addition to" the plaintiff's pleaded imputations. This allows plaintiffs to strategically "box in" defendants by pleading a broad array of imputations, including any that are substantially true, leaving no surplus truths for the defendant to deploy.
Under the 2021 amended law: Defendants can expressly plead that any of the plaintiff's imputations that are substantially true constitute contextual imputations, and argue that in light of those truths, the remaining false imputations cause no further reputational harm.
Illustration of difference: Consider a case where a plaintiff alleges two defamatory imputations from a publication: (1) that he committed fraud (which is true), and (2) that he committed perjury (which is false).
Under the 2005/WA law, the defendant cannot use imputation (1) as a contextual imputation because it is not "in addition" to the plaintiff's pleaded imputations – it is one of them. The defendant would be forced to run a defence of justification on (1) (succeeding on that part) and separately defend (2) (failing on that). The plaintiff would win on the perjury allegation, albeit with some damage mitigation due to the fraud being proven true.
Under the 2021 amended law, the defendant could expressly plead that imputation (1) (fraud) is substantially true and constitutes a contextual imputation, and that in light of that truth, imputation (2) (perjury) causes no further reputational harm. If the tribunal of fact agrees, the defendant would succeed in a complete defence.
6.3 Implications for Western Australian Practitioners
For Western Australian lawyers and litigants, the key comparative point is that authorities from other jurisdictions after 1 July 2021 must be read with caution. For example, if a NSW decision in 2022 holds that a defendant was entitled to plead back a plaintiff's imputation, that reasoning is based on the amended provision, not the WA law.
Conversely, older decisions like Besser v Kermode and Mizikovsky remain highly persuasive in WA because they interpret the same statutory language that WA still uses. Unless and until WA updates its defamation statute, a WA court would likely follow the Besser principle that a contextual imputation must be an "additional" one not sued on by the plaintiff.
The strategic dynamics in WA therefore differ significantly from other jurisdictions:
Plaintiffs can still attempt to preempt contextual truth by broad pleading
Defendants must be diligent in scanning the publication for any defamatory imputations the plaintiff did not plead
The scope of contextual truth is narrower in WA than in jurisdictions that have adopted the amendments
7. Worked Examples
7.1 Example 1: The More Serious Imputation
Consider a publication that carries two defamatory imputations about a plaintiff:
That the plaintiff has body odor (false)
That the plaintiff is a sexual predator (true)
If the plaintiff sues for defamation based only on the first imputation (body odor), the defendant may invoke the contextual truth defence by:
Identifying the second imputation (sexual predator) as a contextual imputation
Proving that this contextual imputation is substantially true
Demonstrating that the imputation about body odor does not further harm the plaintiff's reputation given the truth of the imputation that they are a sexual predator
In this example, the defence would likely succeed because being a sexual predator is objectively more damaging to one's reputation than having body odor. The false imputation does not cause any meaningful additional harm to the plaintiff's reputation in light of the true contextual imputation.
7.2 Example 2: Multiple Imputations in a Business Context
Consider a newspaper article about a Perth businessman that contains the following imputations:
That the businessman evaded taxes (false)
That the businessman engaged in price-fixing arrangements with competitors (true)
That the businessman verbally abused employees (false)
That the businessman knowingly sold defective products to consumers (true)
If the businessman sues for defamation based on imputations 1 and 3, the newspaper might invoke the contextual truth defence by:
Identifying imputations 2 and 4 as contextual imputations
Proving that these contextual imputations are substantially true
Demonstrating that the false imputations about tax evasion and verbal abuse do not further harm the businessman's reputation given the truth of the imputations about price-fixing and selling defective products
This defence would only succeed if the newspaper could prove that imputations 2 and 4 are substantially true and that they are of such gravity that imputations 1 and 3 cause no further harm to the businessman's reputation.
7.3 Example 3: Strategic Pleading Considerations
A TV program broadcasts a story about a local official containing these imputations:
The official embezzled city funds (true)
The official cheated at golf in a charity tournament (false)
Scenario A - Plaintiff omits the embezzlement allegation: If the official sues only on imputation 2 (cheating at golf), the defendant can plead the embezzlement (imputation 1) as a contextual imputation. If proven true, the defendant would likely succeed by arguing that being known as a golf cheat adds nothing to the reputation of someone already proven to be corrupt.
Scenario B - Plaintiff pleads both imputations: If the official includes both imputations in his claim, the defendant in WA cannot use imputation 1 (embezzlement) as a "contextual imputation" because it would not be "in addition to the imputations of which the plaintiff complains." The defendant would need to rely on:
A direct truth defence (justification) for the embezzlement allegation
Some other defence for the golf cheating allegation, or accept liability for it
This illustrates how a plaintiff's pleading choices can strategically constrain a defendant under WA law.
8. Practical Considerations for Western Australian Practitioners
8.1 Advising Plaintiffs
When advising potential plaintiffs in defamation actions in Western Australia, practitioners should consider:
Strategic pleading: Consider pleading all potential defamatory imputations conveyed by the publication, including those that might be substantially true, to limit the defendant's ability to rely on contextual truth.
Anticipating contextual imputations: Review the publication carefully to identify any potential contextual imputations the defendant might rely upon, and consider whether to include these in the original pleading.
Responding to contextual truth pleas: Be prepared to challenge the distinctiveness of any contextual imputations pleaded by the defendant, arguing they are not sufficiently separate from the pleaded imputations.
Amendment strategy: Consider the timing and strategic value of seeking to amend pleadings to incorporate contextual imputations, while recognizing that courts may view late tactical amendments with skepticism.
8.2 Advising Defendants
When advising defendants considering a contextual truth defence in Western Australia, practitioners should:
Jurisdictional awareness: Recognize that Western Australia has not adopted the 2020 uniform law amendments, making the contextual truth defence more restrictive than in other jurisdictions.
Thorough publication analysis: Carefully analyze the publication to identify potential contextual imputations not pleaded by the plaintiff that could form the basis of the defence.
Evidence assessment: Realistically assess the strength of evidence available to establish the substantial truth of contextual imputations, recognizing the potentially higher evidentiary threshold for serious allegations.
Comparative harm analysis: Evaluate whether the defamatory imputations complained of would cause any additional harm to the plaintiff's reputation in light of the contextual imputations, considering factors such as the gravity and subject matter of the imputations.
Alternative defences: Consider whether other defences, such as justification (truth) or qualified privilege, may be more appropriate or should be pleaded in the alternative.
Strategic pleading: Ensure that contextual imputations are clearly identified and distinguished from the imputations complained of by the plaintiff, with comprehensive particulars provided.
8.3 Interplay with Other Defences
Contextual truth often appears alongside a plea of justification (truth) for the same publication. The defendant will typically attempt justification (s 25) on as many of the plaintiff's imputations as possible, and reserve contextual truth (s 26) for the scenario where one or more imputations cannot be justified.
It is acceptable and common practice to plead both defences—they are not mutually exclusive. From a trial management perspective:
The evidence led to establish truth will often serve both defences.
If the defendant proves all the plaintiff's imputations true, justification succeeds and contextual truth need not be considered.
If the defendant proves only some imputations true, justification fails as a complete defence, but contextual truth may still succeed if the proven truths outweigh the false remainder.
Judges should direct juries carefully on the difference: justification requires every defamatory imputation to be true (a high bar), whereas contextual truth requires at least one contextual imputation to be true and effectively no incremental harm from the plaintiff's imputations.
9. Judicial Considerations
For judges managing defamation proceedings in WA, the contextual truth defence raises particular case management and instructional issues:
9.1 Pleadings Scrutiny
At the pleadings stage, scrutinize the formulations of imputations on both sides. A defendant's pleading of contextual truth should be examined for viability: ensure each contextual imputation is properly pleaded and particularized.
If a plaintiff seeks to amend pleadings late to absorb a contextual imputation, weigh the prejudice and timing. Courts have a discretion to disallow amendments that would unfairly deprive a defendant of a substantive defence at a very late stage, especially if the contextual truth plea was properly notified earlier.
9.2 Jury Management
If a jury trial is on foot, recall that the jury will determine both elements of contextual truth (both truth and "no additional harm"). The judge's role is to explain the concept in summing up and to frame questions that capture the statutory test.
When directing a jury on the "no further harm" concept, it may help to instruct jurors to consider the position of the plaintiff's reputation if the true imputations stood alone, and then ask whether adding the false imputation(s) would really make people think any worse of the plaintiff.
Clearly instruct that the burden is on the defendant—if the jury is uncertain whether there is additional harm, that uncertainty means the defence has not been proven.
9.3 Multiple Publications or Plaintiffs
In cases involving multiple defamatory publications or multiple plaintiffs, the defence must be assessed separately for each publication (since each is a separate cause of action).
The defence applies to each plaintiff separately—one plaintiff's reputation might not be saved by truths about another plaintiff.
9.4 Verdict and Judgment Considerations
If the trial is by judge alone (which is common given the complexity of issues like contextual truth), the judge must explicitly address the two limbs of s 26 in the reasons for decision, making clear findings on truth of contextual imputations and on the extent of reputational harm.
If contextual truth succeeds, it results in a complete defence (judgment for the defendant). If it fails but some imputations are proven true, those truths may still be relevant to mitigation of damages.
10. Conclusion
The defence of contextual truth provides an important mechanism for defendants in defamation actions to avoid liability where the overall truth of a publication outweighs any false statements it contains. In Western Australia, however, its application remains more restrictive than in jurisdictions that have adopted the 2020 uniform law amendments.
The defence reflects a policy decision that truth should prevail over falsity when assessing the sting of a publication as a whole. However, the technical requirements—particularly the need for contextual imputations to be "in addition to" those complained of by the plaintiff—can create significant hurdles for defendants.
Western Australian practitioners must use this defence with precision, crafting pleadings to fit the statutory requirements and marshalling strong evidence for any truth asserted. Judges must guide its use at trial, ensuring that juries (if empanelled) grasp the nuanced task required.
Unless and until WA enacts the uniform amendments, contextual truth in WA operates under the 2005 parameters—a reminder that, in defamation law, context can be everything, but only if you're allowed to plead it.