Defamation Defences

Fact v Opinion

There must be a factual basis for the opinion. The defendant must believe that the opinion is true, or if he is not the author, that the author believes that it is true.  The opinions may be based on allegations of facts specified in the statement containing the opinion or referred to in it, that were known or might reasonably be expected to be known by the persons to whom it was published.  Alternatively, the opinion may be based on allegations of fact to which the defence of absolute or qualified privilege would be available.

The matters to which the court in a defamation action shall have regard, for the purposes of distinguishing between a statement consisting of allegations of fact and a statement consisting of opinion, shall include the following:

• 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 opinion rather than a statement consisting of an allegation of fact; and
• the words used in the statement and the extent to which the statement was subject to a qualification or a disclaimer or was accompanied by cautionary words. The defendant must prove that the facts are true or partly true and that the belief is honestly held on the basis of these proved facts.