The balance between the right to free speech and the protection of a person’s reputation are the fundamental underpinnings on which defamation law is based. The root of this balance ostensibly stems from one person’s right to protect their reputation in light of another person’s right to publish comment on it. The judicial system has long upheld the notion that if a person deliberately or maliciously publishes material which adversely and unfairly affects another’s reputation — a cause of action will exist to the person aggrieved. Such a notion has historically only existed at common law and has been fraught with complexities associated with the interpretation of defences to any defamatory cause of action. The recent the introduction of the Defamation Act 2005 has attempted to uniform defamation litigation across all Australian jurisdictions and endeavoured to ensure that defamation cases are trialled with greater consistency. Unfortunately, such an enactment has still left countless unresolved questions with respect to the manner in which litigating parties interpret defamatory meanings and how such meanings are pleaded.
