The Reformulated Contextual Truth Defence: More Radical That First Appears

Abstract

Defamatory publications may carry any number of related or distinct imputations. Complexities arise where a plaintiff selects one or more imputations for complaint, but ignores other imputations carried by the same publication. In England and Wales, the so-called Polly Peck principle permits defendants to plead and justify an imputation other than one complained of by the plaintiff but bearing a common sting with such an imputation. The Polly Peck principle has not been good law in Australia for more than 20 years. The statutory defence of contextual truth in Australia’s uniform defamation laws, however, permits a defendant to plead and justify imputations that are ‘in addition to’ those complained of by the plaintiff and affords a complete defence where, having regard to the substantial truth of those contextual imputations, the imputations complained of by the plaintiff do not further harm the reputation of the plaintiff. As enacted, the defence was infected with a serious drafting error. This article looks at the implications of the reformulation of the contextual truth defence effected by the recent amendments to Australia’s uniform defamation laws. It posits that those implications are considerably broader than have been recognised to date. It argues that the reformulated defence not only corrects the drafting error in the original defence of contextual truth but also resurrects the Polly Peck principle in Australia and substantially neuters 20 years of confused jurisprudence concerning the extent to which a defendant is or should be constrained by the imputations pleaded by the plaintiff.