Defamation Act 2005

It is a defence to the publication of defamatory matter if the defendant proves that – the matter concerns an issue of public interest; and the defendant reasonably believed that the publication of the matter was in the public interest.

In determining whether the defence is established, a court must take into account all of the circumstances of the case.

Without limiting subsection (2), the court may take into account the following factors to the extent the court considers them applicable in the circumstances:the seriousness of any defamatory imputation carried by the matter published; the extent to which the matter published distinguishes between suspicions, allegations and proven facts; the extent to which the matter published relates to the performance of the public functions or activities of the person; whether it was in the public interest in the circumstances for the matter to be published expeditiously; the sources of the information in the matter published, including the integrity of the sources; if a source of the information in the matter published is a person whose identity is being kept confidential, whether there is good reason for the person’s identity to be kept confidential (including, for example, to comply with an applicable professional code or standard); whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person; any other steps taken to verify the information in the matter published; the importance of freedom of expression in the discussion of issues of public interest.

Subsection (3) does not – require each factor referred to in the subsection to be taken into account; or limit the matters that the court may take into account.

Without affecting the application of section 22 to other defences, the jury (and not the judicial officer) in defamation proceedings tried by jury is to determine whether a defence under this section is established.