Overview and Significance of the Defences
The defences of honest opinion (statutory) and fair comment (common law) are vital in balancing protection of reputation with freedom of expression. They permit defendants to publish opinions – even strong, exaggerated or unfair opinions – on matters of public interest, provided those opinions are genuinely held and based on true or privileged facts. As the High Court has recognized, honest opinion functions as a "bulwark of free speech" in Australia's legal system.
These defences originated at common law (as "fair comment") and have been largely codified in the Defamation Act 2005 (WA). Western Australia's statutory defence (referred to here as honest opinion) is found in s 31 of the Act (analogous to s 31 in other jurisdictions) and is adapted from the common law defence of fair comment. Notably, the common law defence still survives alongside the statute, although in practice defendants typically rely on the statute for publications after 2005.
This post explains the WA statutory defence of honest opinion (s 31), its relationship with fair comment at common law, the elements and burden of proof, and how courts have applied these principles. It also highlights unresolved issues (such as distinguishing fact from comment and the "public interest" requirement) and contrasts the WA position with recent defamation law reforms in other states.
Statutory Defence of Honest Opinion (Defamation Act 2005 (WA) s 31)
Section 31 of the Defamation Act 2005 (WA) establishes a defence of honest opinion for defamatory matter. In essence, the defendant must prove three things for the defence to succeed:
1. Expression of Opinion (not a Statement of Fact)
The defamatory matter must be an expression of opinion of the defendant (or an employee/agent, or a third-party commentator) rather than an assertion of fact. In other words, the material must be recognizable as commentary, deduction, criticism, or judgment, as opposed to a factual allegation.
This is judged from the perspective of an ordinary reasonable reader or listener. If the imputation conveyed would be understood as a statement of fact, the defence is not available. Courts apply both objective and contextual tests when determining whether material constitutes fact or opinion. The High Court in Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 emphasized that what matters is how the ordinary reasonable viewer or reader would understand the publication in its full context.
Language indicators such as "I believe" or "in my view" may suggest opinion but are not determinative. Courts examine whether the statement appears to be verifiable or falsifiable (suggesting fact) or whether it reflects a subjective evaluation that cannot be definitively proven true or false (suggesting opinion). The context, including placement in an "opinion" section or alongside factual reporting, can affect this assessment.
In Costello v Random House Australia Pty Ltd (1999) 137 ACTR 1, the court found that seemingly factual allegations incorporated in what purported to be a reviewer's opinion could not be protected as comment. Similarly, in Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183, the High Court rejected characterizing imputations of criminal conduct as mere "comment" despite being presented as conclusions or opinions.
Courts have emphasized that a "comment" must be clearly distinguishable from fact – usually by the inclusion or reference to the facts on which the opinion is based. For example, in Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309, a local newspaper published an advertisement implying a shire councillor "feathered his own nest" (i.e. profited corruptly). The High Court held the defence of fair comment failed because the publication did not state or sufficiently indicate the facts supporting that inference, so an ordinary reader would take it as an allegation of fact rather than comment.
Thus, a threshold question is whether the material is capable of being seen as an opinion drawn from facts (if those facts are either stated or notorious). If not, a judge may withdraw the defence from the jury or strike it out.
2. Matter of Public Interest
The opinion must relate to a matter of public interest. This reflects the common law requirement that fair comment be on a subject that the public, or at least a relevant section of the public, has a legitimate interest in or concern about.
The public interest requirement does not mean the defamatory matter must advance some societal good - rather, it concerns whether the subject matter is one the public legitimately has an interest in knowing about. In London Artists Ltd v Littler [1969] 2 QB 375, Lord Denning described the scope as including "all matters which are of real concern to the public," which extends beyond politics and public affairs to areas such as arts, literature, sports and commercial activities accessible to the public.
Western Australian courts, following this tradition, apply a generous interpretation. In West Australian Newspapers Ltd v Elliott [2008] WASCA 172, the WA Court of Appeal confirmed that matters affecting the general community, including local controversies, satisfy this requirement. However, truly private disputes with no broader significance or matters of mere prurient curiosity rather than legitimate interest would likely fall outside its ambit.
The scope of "public interest" is broad. It is not confined to government or political matters – it encompasses "any matter which invites public attention or discussion" (e.g., performance of public officials, political affairs, public figures, arts and literature criticism, consumer affairs, etc.). Courts rarely find this element lacking, as most published commentary is on matters that others in the community have an interest in.
For instance, in Pervan, the conduct of a local elected official was plainly a matter of public interest. Similarly, in O'Brien v ABC [2016] NSWSC 1289, criticism on a national TV program of a newspaper's environmental contamination story was held to concern an issue of public interest – environmental safety and media reporting.
By contrast, a purely private matter (e.g., personal gossip affecting no wider community interest) would not satisfy this element. It has been noted that, unlike justification (truth) which has no public interest limitation, the honest opinion/fair comment defence imposes this requirement, though it is easily met in most cases.
3. Based on Proper Material (True or Privileged Facts)
The opinion must be "based on proper material", meaning it is grounded in facts or material that is either substantially true, or otherwise protected (e.g., by absolute or qualified privilege). In practice, this means the facts upon which the opinion is based must be proven to be true or covered by a recognised privilege or defence.
If the factual basis is not proved true (or covered by privilege), the defence fails – "If the purported facts upon which the comment is based are not true, the defence does not lie." This echoes the common law principle that truth of the underlying facts is crucial.
Courts apply a materiality test to determine whether enough "proper material" remains to support an opinion when some facts are not proven true. In Beechwood Homes (NSW) Pty Ltd v 3DM Homes Pty Ltd [2022] NSWSC 1324 (though not a WA case, the principle is applicable), the court assessed whether the "gist" or "sting" of the comment was supported by the remaining proven facts. If the unproven facts were merely peripheral or the opinion could reasonably stand on the proven facts alone, the defence may survive.
Importantly, the Defamation Act 2005 introduced a relaxation of the strict common law rule: the defence will not fail merely because some supporting facts are not proved, so long as the remaining proper material is sufficient to provide a basis for the opinion. Section 31(6) WA provides that an opinion does not cease to be based on proper material "only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper". In other words, the defendant need not prove all factual premises, as long as enough of them are substantially true or privileged to form a foundation for the opinion. This is a more forgiving approach than at common law, where a single significant false fact would destroy a fair comment defence.
It is not necessary that every factual premise be explicitly stated in full detail. In Kemsley v Foot [1952] AC 345, Lord Porter established that some publications intrinsically carry their factual background with them (the "Kemsley principle"). For example, a review of a theatrical performance need not recite every scene before offering criticism - the fact of the performance itself provides sufficient context. However, courts require enough factual material that readers can understand what is being commented upon.
4. Attribution of Opinion to the Defendant or Another
Section 31 actually provides three permutations of the defence:
(a) the opinion is that of the defendant themselves (s 31(1)); (b) the opinion is that of an employee or agent of the defendant (s 31(2)); or (c) the opinion is that of a third-party (a commentator) published by the defendant (s 31(3)).
These scenarios cover, for example, a newspaper defending a defamatory editorial (its own opinion), a media company defending a statement of an employee like a reporter or talk-show host, and a publisher defending a letter to the editor or quoted opinion of someone not employed by them. In each case, the same elements (opinion not fact, public interest, proper material) must be established. The distinction matters for the additional requirements regarding honesty (discussed below) – essentially, if the opinion was not actually that of the defendant, the defendant must show they did not endorse an opinion they knew to be disingenuous.
Defeating the Defence: The Malice or Dishonesty Element
If the defendant successfully proves the above elements (1)–(3) for the applicable category (and thus "establishes" the defence under s 31), the plaintiff may still defeat the defence by proving lack of honest belief (s 31(4)).
Specifically, the Act states the defence is defeated if and only if the plaintiff proves:
in the case of the defendant's own opinion, that the defendant did not honestly hold that opinion at the time of publication;
in the case of an employee/agent's opinion, that the defendant did not believe the employee or agent genuinely held the opinion; or
in the case of a third-party commentator, that the defendant lacked reasonable grounds to believe the commentator genuinely held the opinion.
This is effectively a malice test – the plaintiff must show the opinion was not honestly held, i.e., it was published in bad faith or the publisher knew the opinion was not truly held by its purported author. If the plaintiff cannot prove this, the defence stands.
The concept of "malice" in this context has specific legal meaning beyond colloquial usage. Courts look for evidence that the defendant published the opinion:
Knowing it was not genuinely held;
With reckless indifference to whether it was genuinely held;
For a predominant purpose unrelated to the subject matter (e.g., to injure the plaintiff due to personal animosity); or
With knowledge that the factual basis was false.
Roberts v Bass (2002) 212 CLR 1 provides important guidance, with the High Court distinguishing between legitimate purposes (even if strongly expressed) and improper motives. A defendant's ill-will or strong language alone is insufficient to establish malice - there must be evidence that improper motive was the dominant reason for publication. In practice, this presents a high threshold for plaintiffs, explaining why few cases turn on this element.
The burden of proving lack of honest belief is on the plaintiff (on the balance of probabilities), and malice is not presumed; accordingly, a plaintiff will usually plead in a Reply that the defendant (or opinion-holder) acted with malice or did not honestly hold the opinion, to put that in issue.
Conversely, the defendant need not prove their honesty as part of their case – it is presumed once the elements of opinion, public interest, and proper material are established, unless the plaintiff raises evidence to the contrary. In practice, successful defeats of the defence by this route are rare, as it is hard to prove someone's opinion was not honestly held without direct evidence of ulterior motive.
So long as the opinion was honestly held, the defence may succeed even if the opinion is prejudiced, exaggerated, or extreme. The law does not require the opinion to be "fair" or reasonable – only honest. As the High Court noted, the defence can protect even "obstinate or foolish" opinions so long as an honest person could hold the view on the true facts.
Summary of Elements
In concise form, the elements of the honest opinion defence under s 31 (WA) are:
Comment vs Fact: The matter must be recognizable as an opinion, criticism or remark (a deduction, inference, judgment or comment) rather than an assertion of fact.
Public Interest: The opinion must be on a matter of public interest – meaning the subject is one which the public or a segment of it has a legitimate interest in.
Proper Material (factual basis): The opinion must have a basis in true or privileged facts that are either stated or clearly indicated in the publication (or otherwise generally known). Those facts (or material) must be proper in the sense of being substantially true or protected by privilege/another defence. (Minor inaccuracies in the factual basis will not defeat the defence if the core facts supporting the opinion are true.)
Honest belief: If the above are established, the plaintiff can only defeat the defence by proving the opinion was not honestly held by its maker (or that the publisher knew it wasn't honestly held). Absent such proof, the opinion is presumed honest and the defence succeeds.
Burden of Proof
The defence of honest opinion is an affirmative defence – the defendant bears the burden of proving the elements of opinion, public interest, and proper material (s 31(1)–(3)). These are matters for the civil standard (balance of probabilities) and, if a jury is present, typically questions for the jury (e.g., whether the publication would be understood as opinion or fact, whether the facts relied on are proven true, etc.), subject to the judge determining if there is evidence capable of satisfying each element.
The plaintiff bears the burden of proving any defeating circumstance under s 31(4) (lack of honest belief, malice). In trial practice, the plaintiff should raise such allegations in the pleadings (usually by Reply) to give notice. If the plaintiff fails to raise or prove malice, the defendant need not affirmatively prove they honestly held the opinion; it is enough that the opinion could honestly be held on the facts (an objective test).
Judicial Considerations
In applying s 31, courts will consider:
(a) Capability: whether the imputation is capable of being seen as opinion based on disclosed facts – this may be resolved as a matter of law. For example, a trial judge may strike out an honest opinion defence if the publication on its face contains no factual reference or context for the opinion (making it incapable of being "based on proper material").
(b) Whether the facts are sufficiently indicated: It is not necessary that all facts be spelled out in full, especially if the audience can infer the factual basis. For instance, referencing an earlier news story or a widely known event may suffice. But if readers/listeners would not reasonably know what facts the opinion is based on, the defence cannot succeed.
(c) Truth of the factual basis: this often overlaps with a justification defence. A defendant relying on honest opinion will commonly also plead truth for the underlying facts. If those facts are proven true, both justification (for the facts) and honest opinion (for the opinion drawn) may be made out. If some facts are not proven, the court considers whether enough true material remains to satisfy the "proper material" requirement.
(d) Honesty/malice: this usually arises only if the plaintiff leads evidence of improper purpose (for example, personal spite divorced from the content of the opinion). Judges sometimes describe this as the subjective element – the defendant must actually believe what they said. In most cases, there is no direct evidence to doubt the defendant's belief, so this element is often uncontested.
It is worth noting that the honest opinion defence has historically been difficult to establish successfully in litigation. One reason is that any significant failure in the factual foundation will collapse the defence. Another is that courts take care to ensure the publication was truly opinion as opposed to an implied assertion of fact. Indeed, the NSW Judicial Commission's defamation bench book observes that the defence has "rarely been successful" in practice (though there are notable exceptions, as discussed below). Nevertheless, it remains an important protection, especially for media defendants offering commentary or criticism.
Common Law Defence of Fair Comment
The common law defence of fair comment (sometimes called "honest comment") is the predecessor to the statutory honest opinion defence. Western Australia's Defamation Act 2005 did not abolish common law defences except to the extent they are inconsistent with the Act. Thus, the defence of fair comment at general law still exists and "it is still possible to rely upon the common law defence" in addition to or instead of the statutory defence. In practice, for publications after the Act's commencement (2006), defendants usually invoke the statutory version; however, they may plead common law fair comment in the alternative.
At common law, the elements of fair comment can be summarized as follows:
The matter in question was comment (opinion, criticism, deduction, inference) as opposed to a factual allegation.
The comment was on a matter of public interest.
The comment was based on facts which were either truly stated in, or clearly referred to by, the publication, or which were otherwise notorious or sufficiently known to the audience. Those facts must be true or protected by privilege (often phrased as the comment being based on "proper material"). If the facts on which the comment purports to be based are not proven true or privileged, the defence fails.
The comment was "fair" in the sense that it was an honestly made opinion, not malicious. This has both a subjective and objective aspect: subjectively, the commentator must have actually held the view (an honest person's view, not a fabricated pretext to attack), and objectively, the comment must be one that any fair-minded or honest person could have held based on the proven facts. This latter objective test doesn't mean the opinion must be moderate or free of bias; it merely asks whether the conclusion is one that a person might honestly draw from those facts (even if it is extreme or prejudiced). As one court put it, the defendant "must prove that the comment is objectively fair – that an honest person could express the opinion, even if it is exaggerated, prejudiced or obstinate". Provided the comment has some logical relation to the facts, this test is usually satisfied.
All of these elements must be established cumulatively. Additionally, as at statute, the common law defence could be defeated by malice – if the plaintiff proves that the defendant was actuated by improper motive or did not genuinely hold the opinion, the defence would fail (even if the other elements were met).
Thus, in substance, common law fair comment and statutory honest opinion share the same DNA. The notable differences are:
(1) the statute explicitly allows the defence to survive if some supporting facts are true, even if others are not, whereas the common law traditionally required all primary facts to be true (the statute thereby casting the defence slightly wider);
(2) the statute spells out three scenarios (own opinion, employee's, third-party's), whereas common law handled those within one doctrine (but with some uncertainty especially for third-party comments); and
(3) the statute clearly allocates burdens (defendant to prove opinion/public interest/facts, plaintiff to prove lack of honest belief), whereas at common law it was understood but not codified that the plaintiff had to prove malice to defeat the defence once the defendant established the other elements.
Relationship between the Statutory and Common Law Defences
The statutory defence in s 31 was intended to replace and modernize fair comment, emphasizing "honest opinion" rather than the potentially misleading term "fair" (which might be misconstrued as requiring the opinion to be reasonable or balanced). In jurisdictions with the uniform Defamation Acts, courts have confirmed that the statutory defence is "adapted from the common law defence of fair comment". Common law authorities therefore remain highly relevant to interpreting terms like "opinion", "public interest", and "based on proper material" in the statute.
Indeed, early cases under the uniform law, such as Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 (HCA), drew on common law principles to interpret the statutory defence. However, because the uniform legislation is intended to cover the field of defamation defences, some jurists and commentators have debated whether pleading the common law defence is still necessary or permissible.
The consensus (including in WA) is that the common law defence can still be pleaded as an alternative, but it will rarely give a defendant any advantage beyond what the statutory defence offers (except perhaps in unusual situations where a publication technically falls outside s 31's wording but would have been protected at common law). One such scenario might be if an opinion did not relate to a matter of public interest – the statute would not protect it, but theoretically one might ask if the common law could (at common law, public interest was also required, so likely no difference). In practice, modern defamation cases overwhelmingly proceed under the statutory defences for post-2005 publications.
To the extent that a WA judge or practitioner encounters fair comment in a case, the analytical framework will be essentially the same as for honest opinion. It may be useful to recall classic common law statements of principle. For example, the "conventional case" of fair comment, as described by McHugh J in Pervan, is "one where the facts on which the comment is based are stated or indicated in the publication, so that readers can judge for themselves whether the facts justify the comments." This encapsulates the core idea: the audience must be enabled to evaluate the opinion by reference to the factual basis that is either given or well-known.
Another oft-cited formulation comes from Lord Porter in Kemsley v Foot [1952] AC 345, an English case, to the effect that some publications carry their factual background with them (the so-called "Kemsley principle" – e.g., a comment on a notorious topic need not spell out facts that everyone knows). The High Court in Pervan endorsed this, noting that where the subject matter of the comment is sufficiently notorious, a general reference may suffice. These principles continue to guide the application of the honest opinion defence under the statute.
In summary, the common law defence requires comment, on a matter of public interest, based on true or privileged facts that are either stated or sufficiently indicated, and honestly made without malice. The statutory defence in WA's s 31 requires the same, with minor tweaks (notably the allowance for partial truth). Both can be defeated by proof of malice/lack of honest belief. Given their alignment, Australian courts often discuss them interchangeably. For instance, the Victorian Court of Appeal in Herald & Weekly Times v Buckley (2009) 21 VR 661 confirmed that the uniform statutory defence did not materially change the substance of fair comment, apart from its specific modifications (and it struck out a defence where the publication failed to indicate any factual basis, in line with the traditional approach).
Elements in Detail and Practical Guidance for Application
The following is a practical step-by-step guide for in assessing an honest opinion (or fair comment) defence, structured similarly to a bench book checklist:
1. Identify the Statements and their Nature
Determine exactly what published statements are claimed as opinions. This often involves parsing the defamatory imputations. Some statements may be pure assertions of fact, some may be opinion, and some may be mixed (factual statements with an evaluative epithet). Only the latter two can potentially be protected by honest opinion.
The judge may need to rule on whether certain words are capable of being opinion or are necessarily factual. Example: Calling someone "a liar" is usually a statement of fact (alleging specific dishonest conduct), whereas calling someone "a disgrace" or saying "in my view, X has been incompetent" is framed as opinion.
If a statement is not clearly opinion, ask: Would a reasonable reader understand it as the writer's/commentator's opinion, deduction or judgment based on other facts? If yes, it's comment; if it appears to be presenting new factual information, it's not comment. Ensure that any inferred defamatory meaning that is essentially an opinion is identified – e.g., an imputation of "corruption" might be conveyed either as a factual allegation ("John took a bribe") or as an opinion drawn from disclosed facts ("John's conduct reeks of corruption" following a description of what he did). Only in the latter scenario is honest opinion available.
2. Check for Public Interest
Consider the subject matter of the opinion. Is it something the public or the relevant audience has a genuine interest in? In most cases that reach court, this will be apparent and uncontroversial (news, politics, products, art, public figures, etc.).
If it's not obvious, evaluate the context: Does the publication address a matter inviting public attention or discussion? For instance, commentary about a person's performance of public duties, or consumer criticism of a business, are public interest. A private letter circulated only to family members about a personal grudge might fail this test.
In a jury trial, this could be a question for the jury, but often it can be ruled on by the judge as a question of law or mixed fact-law. Historically, courts have taken a liberal view of "public interest" in this context. When in doubt, lean towards inclusion – especially post-High Court's emphasis on freedom of expression in defamation's context (citing the statutory objects). If a publication were truly of purely private interest, a judge could hold the defence inapplicable as a matter of law.
3. Verify the Factual Basis
Identify the facts or material that the defendant says the opinion is based upon. These should be evident in the publication itself or otherwise notorious. For the defence to be available, the comment must be "sufficiently linked" to factual material.
Ask: Does the publication itself state the facts (either in detail or in broad terms)? Or does it refer to other material (articles, reports, events) that supply the factual basis? Or are the facts so well-known that readers would already be aware of them? If the answer to all is no – i.e., the opinion is presented "bare" with no context – the defence cannot succeed. The High Court in Manock underscored that the reader must be able to perceive what the comment is about.
Illustration: A TV program that flashes an image of a person and states "Would you trust this man?" without further context might not qualify as comment on a matter of public interest, because the audience is not told what factual premise underlies the distrust – they are invited to draw a negative inference without facts, which is effectively a factually baseless imputation. By contrast, if the program first explains the person's actions (facts) and then poses, "Would you trust this man?", it is clear the question is an opinion inviting judgment on those explained facts.
In assessing this element, a judge should consider the entire context of the publication – sometimes headlines or insinuations are clarified by body text that does lay out facts. Also consider whether the factual material could be implied or "apparent from the context" (especially in modern publications where hyperlinks or previous installments exist).
4. Are the Facts Proven True or Privileged?
If the defence is being assessed after evidence, the judge (or jury) must determine whether the factual assertions underlying the opinion have been established as true (or covered by privilege). This often overlaps with a defence of justification: the defendant might prove certain facts true not to justify the defamatory sting itself, but to establish the foundation for comment. If the facts are substantially true, this prong is satisfied.
If some facts are not proven, consider s 31(6) WA – whether the remaining proven facts could reasonably sustain the opinion. If yes, the defence might still succeed. If the factual basis entirely collapses (e.g., none of the alleged underpinning facts were true or privileged), the defence fails.
It is useful to enumerate the factual basis in jury directions or judgment reasons: e.g., "The defendant's opinion that the plaintiff was unfit for office was based on the following facts stated in the article: that the plaintiff missed 10 council meetings and was found to have misused a council credit card. The defence requires those facts to be proven true or privileged. Are they proven true? If yes, was the comment the defendant made one that an honest person could hold on the basis of those facts?"
If a jury is deciding, special verdict questions can be framed accordingly (juries may be asked to find which facts are true). If a fact is substantially true (though minor details are wrong), it counts as proper material – perfect accuracy is not required. Privileged material (e.g., fair reports or court records) can also count as "proper material" even if not true, by virtue of s 31(5) defining proper material to include material published on an occasion of privilege.
5. Honest Opinion (Malice) Check
If the defence elements above are established in principle, consider any evidence of bad faith or dishonesty of the opinion-holder. By default, once a comment is based on true facts about a public matter, the defence is made out. The only remaining issue is whether the plaintiff has proven that the opinion was not honestly held (or that the defendant publisher knew it wasn't honestly held).
Typically, this issue arises if there is evidence the defendant had an ulterior motive or didn't actually believe what they said. For example, internal documents might reveal the defendant knew the facts did not support the published view or that they harboured serious doubts about it, yet went ahead to publish for spite or sensationalism. Absent such evidence, courts presume honesty – indeed s 31(4) WA makes clear the defence is defeated "if and only if" the plaintiff proves lack of honest belief.
In jury trials, malice is usually a jury question. Judges should instruct that the defendant is entitled to the defence unless the jury finds on the balance of probabilities that the defendant (or commentator) did not genuinely hold the opinion. Direct evidence of malice is uncommon; more often plaintiffs infer it from the extravagance of language or other circumstances, but mere passion or prejudice in the language is not malice if the opinion is truly held.
Example: In O'Brien v ABC, a journalist sued over a highly critical Media Watch segment. The court found no malice – the host's strong language was within the range of honestly held opinion based on the facts of her reporting, and there was no evidence he had any motive other than journalistic critique. Thus, the defence stood. Conversely, if a plaintiff can show the defendant was recklessly indifferent to the truth of the supporting facts, or published a comment they did not believe merely to injure the plaintiff, that would negate honest opinion.
6. Consider Contexts of Publication
In modern contexts (e.g., online media), the way facts are conveyed might differ. A hyperlink in an online article can serve to "indicate or access" the factual basis. Under the recent reforms elsewhere (discussed below), explicitly linking to a source is recognized as a means of basing an opinion on proper material.
The application of these defences to digital media requires careful consideration of how factual context is communicated online. In Voller v Nationwide News Pty Ltd [2019] NSWSC 766, Justice Rothman considered whether Facebook comments constituted opinion, noting the conversational nature of such platforms affects how readers understand statements. For Western Australia, several principles emerge:
Hyperlinks can satisfy the requirement for indicating factual basis, but courts will examine whether readers would realistically follow such links before forming impressions;
Thread context matters - statements made in reply to news articles or within continuing discussions may derive factual context from earlier posts;
Emoji usage and platform conventions (such as "retweeting with comment") may influence whether content is perceived as factual assertion or subjective reaction;
The ephemeral nature of some digital content (such as disappearing stories) does not exempt publishers from ensuring opinions are based on accessible facts.
In WA (pre-reform), judges can still accept that if an online post says, "Here's an article [link]; in my opinion this is scandalous", the link and its content are effectively part of the publication's context. The defence can encompass that scenario (and the 2021 amendments in other states confirm it).
Judges should also note whether the opinion was presented as personal view (using language like "I think", "in my opinion") which, while not strictly necessary, can help signal to the reader that it is comment. The tone and form can be relevant to step 1 (distinguishing fact vs opinion).
Additionally, if the opinion is in a letter to the editor or attributed to someone other than the publisher, ensure the defendant has identified under which subsection of s 31 they plead. If it's a third-party opinion, the defendant (publisher) needs to show the belief in the commentator's honesty (often this will be inferred if, say, it's a letter signed by the commentator – the publisher can usually assume the person meant what they wrote, absent contrary evidence).
Practical Pleading Strategies for WA
Western Australians should consider these practical strategies when pleading honest opinion or fair comment:
Given WA's retention of both statutory and common law defences, pleading both offers strategic advantage. While largely overlapping, specific situations (such as publications before the Act's commencement or cases with complex factual bases) may benefit from reliance on common law authorities.
In reply to a defence of honest opinion, plaintiffs should specifically plead any alleged improper motive or knowledge of falsity to put malice in issue.
Defendants should carefully identify which subsection of s 31 applies (own opinion, employee's opinion, or commentator's opinion), as this affects what must be proven about honest belief.
When pleading the defence for multiple imputations, defendants should specify which facts support which opinions rather than making generalized claims.
For third-party opinions (s 31(3)), evidence of the publisher's reasonable grounds for believing in the commentator's honesty should be preserved and documented.
Expert evidence may be relevant to establish whether statements would be understood as fact or opinion by ordinary readers in specialized fields.
Illustrative Cases and How Courts Apply the Defences
Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 (High Court)
Facts: A regional newspaper published an advertisement implying a local councillor (Pervan) abused his position for personal gain ("feathering his nest"). No factual details were given in the ad; it was a bare insinuation.
Held: The fair comment defence failed. The majority ruled that readers could not recognize the allegation as an opinion on facts, since no facts were stated or even hinted at. It appeared to be an imputation of corrupt conduct presented as fact. The High Court reaffirmed that for comment to be protected, the factual basis must either appear in the publication or be sufficiently notorious that the audience knows it. McHugh J described the "conventional case of fair comment" as one where the facts are in the same publication, enabling readers to judge for themselves the fairness of the comment. Pervan's case did not meet that standard.
Significance: Distinguishing fact from comment – Pervan illustrates that a defamatory insinuation will not be treated as "comment" just because the publisher labels it as opinion; the context must make it comment by reference to facts. This case is often cited for the requirement that the reader be in a position to evaluate the comment by knowing the facts – a principle now codified in the uniform defamation laws post-2021.
Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; 232 CLR 245
Facts: A Channel Seven program (Today Tonight) broadcast a segment critical of a forensic scientist (Dr. Manock), implying he had mishandled autopsies – effectively questioning his competence and integrity. The broadcast used imagery and commentary that suggested Dr. Manock had "got it wrong" in a high-profile case, but the issue was whether the factual basis for these implications was adequately conveyed.
Held: The High Court (in multiple judgments) discussed at length the fair comment defence. They reiterated that what matters is how the ordinary viewer would understand the segment – would they perceive it as the presenter's opinion or as a factual exposé? And were the facts on which any opinion rested made clear? The plurality in Manock agreed with the orthodox position from Pervan: an opinion must be based on facts indicated in the material. They also affirmed that if those underlying facts were unproven, the defence fails. In Manock, there was debate over whether the segment had sufficiently indicated the facts (which came from a prior inquiry into the autopsy) – ultimately, the High Court sent the matter back for retrial, but along the way it clarified the law.
Significance: Confirmation of requirements and "proper material" concept – Manock is frequently cited for the proposition that the statutory defence of honest opinion requires the comment be tied to proper material, and it elaborated that proper material means factual material that is either in the publication, referred to, or notorious, and which is true or privileged. At [45] of the judgment (referenced in commentaries), the High Court stressed the importance of readers/viewers being able to identify the factual basis of an opinion. Manock also provided a vivid example that even strong or extreme opinions are protected if these conditions are met – one judge noted the defence can cover comments that are "ridiculous or exaggerated so long as they are honestly made". In practical terms, Manock led to some uncertainty in lower courts about how explicitly facts need to be referenced (since the statute didn't then spell it out), which was one impetus for legislative clarification later.
O'Brien v Australian Broadcasting Corporation [2016] NSWSC 1289 (McCallum J)
Facts: An ABC Media Watch episode, hosted by Paul Barry, sharply criticized journalist Natalie O'Brien's newspaper articles about toxic contamination in a Sydney suburb. Barry's commentary included statements that O'Brien's reports were "alarmist" and that "the central claims of [her] story are just wrong." The broadcast did recount some of what O'Brien had reported (for example, that she failed to consult qualified experts and that authorities disputed her findings). O'Brien sued, alleging the program defamed her as an incompetent journalist.
Defence: The ABC relied on honest opinion (and fair comment) – arguing that the segment was an opinion or criticism on O'Brien's published articles (which were the proper material).
Held: The court upheld the defence, finding that the program clearly presented an opinion on a matter of public interest (media reporting of environmental issues) and that the opinion was based on disclosed facts – namely, it quoted and referenced O'Brien's own articles and then offered criticism of them. Justice McCallum concluded Barry's comments were honestly held opinions within the range of fair comment: "Mr Barry's criticism of The Sun-Herald and Ms O'Brien represented an honest opinion, being well within the bounds of what could fairly be said by way of comment or opinion on the facts stated." Because the underlying facts (what O'Brien's articles contained and omitted) were either true or substantially true, the defence succeeded. O'Brien had not proven malice; on the contrary, the judge found Barry's criticisms were backed up by evidence (experts attesting that O'Brien's articles were misleading), reinforcing that his opinion was honestly held and not spiteful.
Significance: Modern application and success of the defence – This case shows the defence working as intended to protect media criticism. The facts of the plaintiff's own publication were used as the basis, satisfying the proper material test, and the court was willing to allow robust language ("just wrong", "irresponsible") as fair comment so long as it stayed tethered to those facts. It also illustrates that courts consider the tone and whether it strays into personal attack unsupported by facts; here, Barry stuck to pointing out factual errors (which were proven), so his value judgments about those errors were protected. The case underscores that an opinion doesn't have to be labeled "opinion" – it just needs to be clearly a conclusion drawn from stated facts. Media Watch introduced O'Brien's claims (facts) and then gave its view, leaving viewers able to judge the critique's fairness – the classic fair comment scenario.
Cook v Flaherty [2021] SASC 73 (Supreme Court of SA)
Facts: A Facebook user posted strong criticisms about a local council and a particular officer, implying misconduct. Some statements were pure opinion ("she is unfit for her job"), but the factual basis was not fully laid out in the posts (though the dispute was known in the community).
Held: The SA Supreme Court (on appeal) discussed the need for factual substratum. It reiterated the Pervan/Manock principles and also touched on the "Kemsley" principle – that in some cases the subject matter itself (e.g., a public controversy) is so well known that even a general reference to it can suffice as indicating the basis. The court ultimately found that some of the Facebook commentary was too loose to qualify as honest opinion (no clear facts cited), but other parts that referenced known council decisions could be defended.
Significance: Social media context & notorious facts: This case (and others like it) highlight challenges in the digital age – people often state opinions in shorthand on social media. The courts are likely to continue requiring some reference to facts, but they might accept that the "community knowledge" or linked content provides the context. It reinforces to practitioners that even on platforms like Facebook, if one is asserting an opinion (especially a negative one about a person), including or pointing to the facts (e.g., linking a news article or mentioning the specific incident) is crucial to later mount an honest opinion defence.
These examples show that courts rigorously apply the elements: if any element is missing (as in Pervan, no facts indicated; or in parts of Cook v Flaherty, no clear factual context), the defence fails. But when the elements are satisfied, courts have been willing to uphold the defence even for very strident commentary (as in O'Brien or similar cases where language was harsh but grounded in fact).
Unresolved and Difficult Issues in Interpretation
Despite clear principles, some grey areas and debates remain in the honest opinion/fair comment doctrines:
Distinguishing Fact from Opinion
This is a persistent difficulty. Defamatory imputations often lie on a spectrum between fact and opinion. Phrases like "in my opinion" are not conclusive – the court looks at how the whole publication would strike an ordinary person.
One challenging scenario is the use of rhetorical questions or irony, which can imply facts without stating them. For example, "Why does Councillor X have five new luxury cars?" – ostensibly a question, but it insinuates a fact of unexplained wealth. Courts have treated such innuendo as factual imputations rather than opinions.
The Victorian Court of Appeal in Buckley (2009) grappled with imputations that were implied conclusions drawn from unstated facts (so-called "inferences of fact"). The law remains that if the defamatory sting is conveyed as a factual inference (i.e., readers would take it as a statement that something is true about the plaintiff), the comment defence won't apply. The publisher cannot escape by simply couching a fact as an opinion if in substance the publication asserts the fact.
Judges must carefully direct juries on this distinction. The test is often phrased: would a reasonable reader understand the publisher to be asserting a fact about the plaintiff (even by implication), or expressing a view based on facts that either have been or will be provided? If it's the former, the defence is not available. This line can be fine and requires close analysis of language and context.
What counts as "Comment" or "Opinion"
Relatedly, the scope of what is an opinion can be tricky. Pure value judgments (e.g., "X is a terrible artist") are clearly opinion. But sometimes statements of mixed fact and opinion occur, e.g., "The concert lasted two hours and was a waste of the audience's time." The first part is fact, the second part opinion. The defence can apply to the defamatory imputation (that the concert was worthless) as comment, provided the factual part (duration, and presumably what occurred at the concert) is true.
The law allows this splitting – indeed, fair comment often comes in such packages. The difficult cases are those where the "opinion" implies specific undisclosed facts. Pervan and Manock show that if specific defamatory facts are implied (e.g., corruption, incompetence) without disclosure, the defence fails. This has led some commentators to call such implied facts "the bane of the comment defence." Ensuring the factual basis is disclosed is the cure.
The Public Interest Requirement
As noted, this element is usually easily met, and historically courts interpreted "matter of public interest" broadly (including matters of public entertainment, e.g., theatre or book reviews were always covered). There has been academic and law reform discussion on whether this requirement remains necessary – after all, if an opinion is true and honestly held, why should it also have to be on a matter of public interest? The Law Society of NSW, in the lead-up to the 2020 reforms, questioned the rationale, noting that truth as a defence has no such limitation. However, the requirement was retained in the law.
In practice, almost any published opinion about another person will be about something arguably of public interest once it's aired publicly. Only very personal disputes (e.g., a Facebook post among friends accusing someone of being a bad friend) might fall outside. In WA, no significant case has turned on lack of public interest, and it remains a low threshold. Judges should be aware that "public interest" in this context does not mean the publication was for the public's benefit (that is a qualified privilege concept); it only means the subject matter is one that people can properly have an interest in. For example, gossip about a celebrity's public behaviour could be a matter of public interest (because the celebrity's fans or the public are interested), whereas gossip about a purely private family matter of a non-public figure might not.
The Meaning of "Honest" Opinion
The use of "honest" emphasizes subjective genuineness. One unresolved nuance is how to prove or infer dishonesty of opinion. It is rare to have direct evidence. Sometimes the extremity or persistence of a comment might suggest malice, but courts caution that prejudice or strong language alone doesn't equate to malice if the view is actually held.
One interesting facet is that under common law, there was that "objective fair-minded person" test (could any person honestly hold this view?). If an opinion was so extreme that no reasonable person could sincerely hold it on the facts, some courts might label it "unfair" in the sense of the defence. However, given the renaming to "honest opinion," the focus is squarely on subjective honesty. So long as someone (even a very unreasonable person) might honestly voice that view, the defence isn't denied.
In practical terms, this issue is theoretical – almost any view could be honestly held by someone. Thus the "could any fair-minded person hold it?" test rarely precludes the defence (it's usually facts or malice that do). Australian courts have moved away from using the term "fair" except historically; now it's about honest opinion, not objectively fair comment. Judges in WA should thus direct juries that the question is did the defendant (or commentator) honestly hold that view?, not whether it was fair or reasonable. However, if something is so outrageous that it casts doubt on the speaker's sincerity, that folds back into the malice analysis.
Requisite Connection Between Opinion and Facts – Pre-2021 Uncertainty
A significant point of contention (now partially resolved by reforms elsewhere) was whether the Uniform Defamation Acts required that the factual basis appear in the publication. The statute (until amended) defined "proper material" by reference to truth/privilege, but did not explicitly say the facts had to be included or referred to in the matter. Courts nonetheless generally implied that requirement, following Pervan and Manock.
However, some defendants argued that the statute omitted an explicit "facts indicated" requirement, suggesting a comment could be based on facts known generally or later proven, even if not indicated in the publication. This led to a "judicially imposed hurdle" (as described by the Victorian Bar) that all courts imposed despite not being spelled out in s 31. The view of most judges (correctly, with respect) was that an opinion cannot be "based on" proper material if readers are unaware of any material – because then it's not seen as an opinion on those facts. Still, the lack of textual clarity was seen as a problem. The 2020 Model Defamation Amendment Provisions addressed this by adding a new subsection expressly requiring the opinion to be "explicitly or implicitly based on material that is disclosed or apparent" in the publication. (See below for the specifics of the reform.)
Letters to the Editor and Third-Party Comments
Another subtle issue is the situation covered by s 31(3) – where a defendant (like a newspaper) publishes someone else's opinion. At common law, it was sometimes unclear if the publisher needed to endorse the opinion or could simply say "this is the writer's view, not ours" and still use the defence.
The statute clarifies that the defence is available if the publisher proves the requirements and additionally that they believed the commentator genuinely held that opinion. This raises practical proof issues: how does a newspaper prove it believed the letter-writer was sincere? Often there's an assumption of sincerity absent evidence to the contrary. If, say, a paper published a letter under a pseudonym that it actually wrote itself as a straw-man, that would obviously fail. But usually, testimony that "we received this letter and had no reason to think the writer didn't mean it" would suffice.
This issue is rarely litigated explicitly, as publishers typically stand behind the opinions they publish. With the rise of online comments, a similar principle might apply: if a website host is sued for a user's comment and tries to use honest opinion, it would need to show it believed (or had no reason to doubt) the user's comment was their honest opinion. This is largely untested, but in practice internet intermediaries more often rely on innocent dissemination or the new safe harbours than honest opinion.
Social Media and Informal Publications
As noted, the application of the defence to casual online speech can be tricky. A tweet that just says "Politician X is a crook" – is that defendable as honest opinion? Arguably not, because no basis is provided, and it's not obvious. The defendant might try to argue the basis was an earlier news story everyone knew.
The 2021 reforms allow context to be considered (e.g., if that tweet was part of a thread responding to a news link, context might make the basis apparent). For WA judges, dealing with social media requires careful analysis of context – often the "matter" for defamation is not just one post but a series of linked posts or comments. The context may supply the factual material (for example, the original post in a thread might contain an article link, and subsequent comments (opinions) refer to it). Ensuring the factual context is included in the evidence and considered is important.
Overlap with Other Defences
Sometimes a publication might arguably be both an opinion and, say, a report of allegations (raising qualified privilege or the new public interest defence). Defendants may plead multiple defences. Honest opinion has the advantage (for defendants) of not requiring reasonableness (unlike statutory qualified privilege in some contexts) – it purely focuses on honesty and factual truth. But it has the limitation of requiring that element of public interest and factual disclosure.
There can be strategic decisions: e.g., a media defendant unsure if a statement will be seen as fact or opinion might plead truth (justification) for the factual imputations and honest opinion in the alternative (if a jury sees it as comment on disclosed facts rather than a new factual charge). The court may need to leave both to the jury in the alternative. For instance, in a restaurant review case, a statement "the food was inedible and gave me food poisoning" contains factual allegations (got food poisoning) and opinion (food was inedible). The publisher would need to prove the factual part true, and then the opinion part is straightforward. If they fail to prove truth of food poisoning, they might still argue the opinion of "inedible" was based on the meal's taste (subjective experience) – but if the only basis was the alleged sickness, losing truth undermines the comment. So these defences can succeed or fail together or partially.
Constitutional Dimensions and Uniformity Considerations
While not explicitly constitutional in origin, the honest opinion defence intersects with Australia's implied freedom of political communication. In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, the High Court recognized the need to shape defamation law in light of constitutional values. Western Australian courts, though applying state law, must interpret the honest opinion defence consistently with these constitutional principles, particularly when the opinions concern political matters.
This constitutional dimension creates an additional reason why, despite Western Australia not yet adopting the 2021 reforms, WA courts should strive for interpretive alignment with other jurisdictions where possible. The goal of uniform defamation laws across Australia reflects both practical necessities in an interconnected media landscape and constitutional imperatives of consistent protection for political discourse.
2021 Reforms and Jurisdictional Differences (WA vs NSW/Vic and others)
Western Australia, as of the date of this post, has not yet enacted the "Stage 1" defamation reforms that other states such as New South Wales, Victoria, Queensland, South Australia and Tasmania implemented from July 2021 onwards. Those reforms amended the uniform defamation laws in several ways, including introducing a serious harm threshold and a new public interest defence. Relevant here, they also amended the honest opinion defence to dispel the uncertainties mentioned above.
In jurisdictions that adopted the reforms (e.g., NSW's Defamation Amendment Act 2020, commenced July 2021), section 31 was amended to explicitly spell out how an opinion is to be based on proper material. The key change was inserting a new subsection in the amended Acts) which provides that: an opinion is based on proper material if (a) the material on which it is based is (i) stated (either specifically or in general terms) in the published matter, (ii) notorious, (iii) accessible via a reference, hyperlink or other access point in the matter, or (iv) otherwise apparent from the context; and (b) that material is substantially true, or privileged (absolute/qualified), or protected by another defence (such as fair report). In effect, the amendment codifies the requirement that the factual basis must be disclosed to the reader in some way – by direct statement, reference, hyperlink, or contextual implication – and then reiterates the truth/privilege requirement for that material.
Under the amended provisions (in NSW, Vic, etc.), a defendant who wishes to rely on honest opinion must ensure the opinion piece itself either lays out the facts or at least points the reader to them (for example, a hyperlink to source material would suffice). The inclusion of "otherwise apparent from the context" covers scenarios like satire or novel formats where the factual premise might be understood from context even if not formally stated. These changes essentially clarify and reinforce the principles already applied in WA courts, but with statutory authority.
Western Australia's Act currently (as originally enacted in 2005) does not have the equivalent. However, WA courts would likely follow the High Court interpretations which are consistent with those requirements. The absence of the amendment in WA means theoretically a defendant might argue a more generous interpretation (e.g., "the statute doesn't explicitly say the facts must be in the publication"). But given the weight of authority (and now the fact that other states have codified the stricter view), a WA court is very likely to continue requiring that the factual basis be indicated in or with the publication for the defence to apply.
Another difference is that the post-2021 law removed the defence of triviality (formerly s 13 in WA, s 33 in NSW) in most jurisdictions. WA still has Defamation Act s 33 (triviality) in force. This doesn't directly affect honest opinion, but is part of the divergent evolution of WA's defamation law compared to the eastern states. Likewise, WA has not (yet) adopted the serious harm requirement or the new public interest defence (s 29A).
The new public interest defence (modelled on the UK "Reynolds" defence) provides a defence for publications on a matter of public interest where the defendant reasonably believed publication was in the public interest. This is conceptually distinct from honest opinion: it's more akin to qualified privilege. One could say the new public interest defence addresses some situations that might previously have tried to squeeze into fair comment. For instance, if someone published a defamatory matter that was an opinion but couldn't prove the factual basis true, they might now attempt to use the public interest defence (if they acted reasonably) – whereas honest opinion would fail for lack of truthful basis. In WA, until such a defence is enacted, defendants remain reliant on common law qualified privilege (e.g., Lange political communication defence) or analogous statutes.
In terms of honest opinion specifically, the main contrast is that NSW, Victoria, etc. have a more detailed blueprint in the Act for linking opinions to facts. Judges in those states can point directly to s 31(5) to instruct juries that the opinion must have been based on material in the publication (or notorious etc.). In WA, judges will achieve the same end by referencing case law (the jury directions would be effectively identical in substance, citing Pervan or Manock for the principle). If WA adopts the reform in the future, it will simply confirm what is already the practice.
It's also worth mentioning that the reforms did not otherwise change the honest opinion defence's substance – the public interest element remains, as does the defeat by lack of honest belief. Some submissions had suggested perhaps removing the public interest limb or providing greater protection to corporate employees expressing opinions (to avoid them being sued personally), but these were not incorporated in Stage 1 reforms. Stage 2 defamation reforms (enacted 2022–2024 in some places) did not relate to honest opinion but to new internet intermediary defences and court powers.
In summary, Western Australia's law on honest opinion is currently the same as the pre-2021 uniform law: it requires an opinion on a matter of public interest, based on proper material (substantially true or privileged facts), with honest belief, but without an explicit statutory mandate that the facts be set out. Other jurisdictions (NSW, Vic, Qld, SA, Tas) have now explicitly added that requirement, aligning the statute with what case law already expected. Practically, WA courts already mirror that approach, so the outcomes should not differ. WA defendants, however, should be mindful that if and when WA updates its Act, the defence's wording will change to formally require the linkage of fact and opinion in the publication. Until then, the prudent course (and one a court will likely enforce) is to ensure compliance with the spirit of the eastern states' provisions – i.e., clearly reference the factual basis in any opinion material.
Finally, to contrast with the UK position (since it influenced our reforms): the UK's Defamation Act 2013 renamed fair comment to "honest opinion" and explicitly required that the statement complained of "indicated, whether in general or specific terms, the basis of the opinion." The 2021 amendments essentially import that language. The rationale is to avoid the argument that an honest opinion defence could ever succeed if the audience was left in the dark about the basis. Now, with most Australian jurisdictions in line, WA stands out only temporally. One could expect WA courts to be guided by the uniform interpretation so as not to create a haven for fact-free "opinions".
Conclusion
The honest opinion (formerly fair comment) defence is a cornerstone of defamation law, designed to protect freedom of expression – in particular, commentary and criticism – while ensuring such commentary is anchored in facts and not a cloak for false allegations. In Western Australia, the defence under s 31 of the Defamation Act 2005 (WA) provides robust protection for statements of opinion on matters of public interest, so long as the opinions are based on true or privileged facts and are genuinely held. The common law fair comment defence, with essentially the same requirements, remains a parallel avenue, though usually coextensive with the statutory defence.
Litigants should approach these defences with a structured analysis: verify the material is comment, identify the factual substrate and ensure its truth/protection, confirm the public interest in the subject, and be alert to any evidence of malice. Leading cases like Pervan and Manock serve as guideposts for applying these criteria, and recent cases (e.g., O'Brien v ABC) demonstrate the defence's continued relevance in protecting critical speech. The 2021 amendments adopted in other states have reaffirmed the importance of disclosing the factual basis of an opinion – a principle WA courts already uphold in substance.
