Sections 21(5) to (7) of the Cybercrime Code Act 2016 are the balance against a criminal defamation offence carrying up to 25 years.
Section 21(5) — the defences
(a) was true; or
(b) was for the benefit of the public; or
(c) constituted a fair comment; or
(d) was made in good faith.
The words are “a charge for an offence under this section” — so the defences are available on the basic offence in section 21(2), the knowingly false form in subsection (3), and the extortion form in subsection (4).
They are alternatives. Any one of the four is a complete answer.
Section 21(6) — each is a question of fact
Whether or not the publication complained of is true, or was made for the benefit of the public, or constitutes fair comment, or was made in good faith, is a question of fact.
There is no statutory test for any of them. The court decides on the evidence. The same approach is taken in section 17(3), section 18(4), section 16(3) and section 25(4).
What each defence covers
| Defence | What it addresses | Limits |
|---|---|---|
| (a) Truth | The imputation was accurate | Not available where the material is sexual — s 21(8) |
| (b) Benefit of the public | Publication served a public purpose — exposing wrongdoing, informing on a matter of concern | A question of fact; the benefit must be to the public, not merely of interest to it |
| (c) Fair comment | The material was comment — opinion — rather than a statement of fact | The comment must be fair; opinion presented as fact is not comment |
| (d) Good faith | The publisher acted honestly, without improper motive | The burden shifts under s 21(7) |
Two provisions qualify the truth defence.
Section 21(8) removes it entirely where the material is of a sexual nature or depicts sexual conduct — even where produced with the knowledge or consent of the person defamed.
And the aggravated offence in section 21(3) turns on knowledge of falsity, so truth and that subsection are mutually exclusive: where truth is established the aggravated form cannot arise.
Section 21(7) — the reverse onus for good faith
Where the defence of good faith is raised under subsection (5)(d), the burden of proof shifts to the party alleging the absence of good faith.
Once a defendant raises good faith, they need not prove it. The prosecution must prove its absence.
Section 21(7) is the only express burden-shifting provision in the Act. Compare section 25(3), where a defendant relying on public benefit must prove it, and section 17(2), which says nothing about onus at all.
The practical importance is considerable for journalists, commentators and ordinary users. A publisher who acted honestly — who checked what they could, who had no improper motive, who published because they believed the matter mattered — raises good faith and puts the prosecution to proof.
What tends to displace good faith: knowledge that the material was false (which is itself section 21(3)); a personal vendetta; refusal to publish a correction; publication for gain, which points to section 21(4).
The public interest protection
The provisions of section 362E of the Criminal Code Act (Chapter 262), relating to protection of matters of public interest, apply to this section.
And for that purpose, “public meeting” in section 362E includes online discussion forums whether or not they are featured on social networking sites.
See the article on section 362E. The extension of “public meeting” to online forums is the Act’s recognition that public debate now happens on social media.
Practical points
- Keep the basis for what you publish. Because every defence is a question of fact, contemporaneous records — sources, checks made, attempts to obtain a response — are what establish truth, public benefit and good faith.
- Distinguish fact from comment. The fair comment defence protects opinion. Stating an opinion as though it were established fact forfeits it.
- Do not publish sexual material about a person. Section 21(8) removes the truth defence, and consent to the material’s creation is expressly irrelevant.
- Correct promptly. A refusal to correct once error is shown undermines good faith — and republication after being told material is false engages section 21(3).
- Never trade on publication. Offering to suppress material, or threatening to publish, for any benefit engages section 21(4) — 25 years and K1,000,000 for a company.
Further guidance is in what you may post about someone online and how the Act affects social media.
Sources
- Cybercrime Code Act 2016 — ss 16–18, 21, 25
- Criminal Code Act (Chapter 262) — s 362E
Before relying on anything here, read the current text of the Cybercrime Code Act 2016 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.