The Proper Focus of Defamation Defences and the Challenge of Inconsistency

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Journal Article
Australian Bar Review, 2010, 33 (3), pp. 258 - 275
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Should a defamation defence be directed to the plaintiffs imputation or the words used by the defendant? This is a perplexing question to which inconsistent answers have been given, not only between different defences but also between common law and statutory versions of a defence and even in relation to the same defence. This paper showcases examples of these different levels of inconsistency, with a particular focus on the qualified privilege and fair comment/honest opinion defences in the wake of the High Court decision in Channel Seven Adelaide Pty Ltd v Manock. Inconsistency on matters as important as meaning can only exacerbate the complexity and uncertainty already surrounding defamation litigation. There is also the wider issue of the continuing role and prominence of imputations in the new scheme. Highlighting these issues is timely in view of the upcoming 5 year review of the uniform defamation legislation.
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