Defamation / Reputation
Afanasyev v. Zlotnikov
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The Supreme Court of New South Wales of Australia held that the defendant’s defense of justification under Section 25 of the Defamation Act was improper because its defamatory statement unambiguously accused the plaintiff of obtaining financial advantage from corruptive conducts, which the defendant was not in a position to prove. The Court, however, dismissed the plaintiff’s request of striking out the defense of contextual truth under Section 26 as the defendant ‘s other statements against the plaintiff imputed something of a different character from its specific allegation of financial self-dealing.
The Australian Broadcasting Corporation (ABC) imparted a news item concerning the alleged corruptive conducts of the Plaintiff, a former minister, in mining deals in New South Wales. The news particularly stated that the Plaintiff along with another minister “made millions” from those deals.
Prior to the news, the Australia’s Independent Commission Against Corruption had found that the individuals for whose benefit the plaintiff acted corruptly obtained millions of dollars. The Commission’s findings, however, did not allege that the Plaintiff himself acquired financial benefits.
The Plaintiff subsequently brought a defamation lawsuit in the Supreme Court of New South Wales against the ABC.
The first issue before the Court was whether the ABC properly invoked the defense of justification under Section 25 of the Defamation Act of 2005. The Section accords a defense “to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.”
The Plaintiff contended that the ABC was not entitled to the defense of justification because the news unambiguously accused him of recieving money from the mining deals, for which the ABC was not in a position to prove.
The Court held that the statement clearly charged the Plaintiff with obtaining millions of dollars and therefore, the ABC’s defense of justification based on the statement’s literal meaning was not capable of proving its substantial truth.
The second issue was whether the ABC was entitled to the defense of contextual truth under Section 26 of the Defamation Act. Under this defense, the defendant may not be held liable for defamation if he can prove that in addition to the defamatory statement alleged by the plaintiff, one or more other imputations made against the plaintiff are substantially true and that the underlying defamatory statement does not harm the plaintiff’s reputation because of the substantial truth of those other statements.
The news at issue stated that the Commission had found the Plaintiff dishonest and that he abused his position as a government minister. As such, the ABC argued that because these statement were true, its defamatory statement that the Plaintiff made millions of dollars was no longer capable of harming his reputation.
The Court ruled that the statement of dishonesty and abuse of power imputed “something of a different character to the plaintiff from the notion of ‘making millions’ from corrupt deals.” [para. 14] As a result, the Court dismissed the Plaintiff’s request of striking out the ABC’s defense of contextual truth.
Based on the foregoing reasons, the Court allowed the Plaintiff’s application to strike out only the defense of justification and directed the parties to submit motions for further proceedings.
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