Defamation Defences

Defence of Honest Opinion

The defence requires that the opinion is honestly held. The Defamation Act set out criteria in relation to distinguishing fact from opinion.  The court is to have regard to the extent to which the statement is capable of being proved, the extent to which the statement was made in circumstances in which it was likely to have been reasonably understood as a statement of an opinion rather than a statement consisting of an allegation of fact, the words used in the statement and the extent which the statement was subject to a qualification, disclaimer or cautionary words.

The labelling of something as an opinion is not necessarily conclusive, although it is a relevant factor. Practical issues of judgement and interpretation may arise in distinguishing opinions from facts.  Some statements in the forms of opinions assert facts.  Some statements are clearly subjective.  Other statements will have facts and opinions intermingled.

It must be proved that the opinion related to a matter of public interest.  This is a matter for determination by the judge.  It would include matters of public affairs and matters in the public arena.  And this context “interest” does not mean that the matter might be of interest to the public.  It implies matters that are of legitimate concern to the public.