The Reformulated Contextual Truth Defence: More Radical That First Appears
| Author | Matthew Collins |
| Published date | 01 June 2022 |
| Date | 01 June 2022 |
| DOI | http://doi.org/10.1177/0067205X221087455 |
| Subject Matter | IN FOCUS: DEFAMATION LAW |
In Focus: Defamation Law
Federal Law Review
2022, Vol. 50(2) 206–220
© The Author(s) 2022
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DOI: 10.1177/0067205X221087455
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The Reformulated Contextual Truth
Defence: More Radical That First
Appears
Matthew Collins*
Abstract
Defamatory publications may carry any number of related or distinct impu tations. Complexities
arise where a plaintiff selects one or more imputations for complaint, but ignores other im putations
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 plai ntiff 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 additio n
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.
Received 20 July 2021
The Defence of Justification
At common law, defendants have a defence of justification (truth) if they prove, on the balance of
probabilities, that the defamatory imputations complained of by the plaintiff and found to be carried
*The Victorian Bar Inc, Melbourne, VIC, Australia. The author may be contacted at matt.collins@vicbar.com.au.
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