The constitutional defence derived from [name withheld] v Herald and Weekly Times Ltd applies to political discussion at the state level in South Australia under the Constitution Act 1934 (SA). The [name withheld] tests (knowledge of falsity, recklessness, unreasonableness) apply equally to expressions of comment or opinion as to statements of fact. A newspaper's failure to call the editor and author of a defamatory editorial permits an inference that their evidence would not have assisted the publisher, and the evidence of a peripheral participant in the editorial process is of limited value in establishing the publisher's state of mind. The omission of relevant facts from a publication, rendering the factual scenario unbalanced and misleading, means the facts have not been 'truly stated' for the purposes of the fair comment defence.
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