Preparing for a Full-Scale Invasion? Truth, Privacy and Defamation

Abstract:     
One feature of the national, uniform defamation laws, which came into force across Australia in 2006, was that truth alone became a defence to defamation. Prior to their introduction, the defence of justification in four Australian jurisdictions required not only proof of substantial truth but also satisfaction of an element of public interest or benefit. Following the reforms, there was public debate about whether the removal of the element of public interest or benefit from the defence of justification would have the effect of allowing the media to invade privacy with greater impunity than previously. This article examines the public debate on this issue. It argues that more invasive media practices cannot be attributed solely or substantially to the removal of the element of public interest or benefit from the defence of justification. It further contends that, given that reputation and privacy are conceptually distinct interests, it is inappropriate to use defamation law, which seeks to protect reputation, as an indirect means to protect privacy. The article then notes recent attempts in Australia to develop a direct form of privacy protection.

Keywords: Defamation, Australia, New South Wales, National, uniform defamation laws, Truth, Justification, Defences, Public interest, Public benefit, Privacy, Reputation, Law reform

JEL Classifications: K10, K30

Accepted Paper Series