The Role of Fault in the Australian Tort of Defamation

Abstract

This Thesis examines the role of fault in the primary elements, defences and answers of the Australian tort of defamation and selected ramifications. Based on a comprehensive and in-depth interrogation of these stages, I argue that a vein of different fault components cuts across all three. The resulting profile of fault is complex, incoherent and unruly. Further, I argue that this fault-profile has important ramifications for three selected matters concerning defamation. First, contrary to popular belief, it does not conform to that of a strict liability tort and, moreover, the tort resists determinate classification according to the traditional fault taxonomy, which is itself flawed. Second, this fault-profile both fuels and tempers the tort’s susceptibility to becoming negligence-based. Third, it suggests that the function of fault in this tort is compromised in the interests of balancing reputation and free speech. The analysis in this Thesis contributes to knowledge and understanding of an understudied area of Australian defamation law. It also underscores the difficulties posed by a weak fault taxonomy, conflicting understandings of fault and fault-related concepts and a dearth of methodological guidance for reliable assessments of fault in a tort. In addition, it provides grounds for devoting greater attention to the role of fault in future reviews of the Australian tort of defamation in the interests of not only enhancing the balance between reputation and free speech struck within the tort but also promoting a more holistic approach to defamation law reform.