John Fairfax Publications Pty Ltd v Blake

John Fairfax Publications Pty Ltd (the publisher) appealed to the Court of Appeal of New South Wales against a decision of the Supreme Court of New South Wales concerning a defamation action brought by Mr Blake. The dispute centred on the publisher's defence of contextual imputation, which alleged that the imputations conveyed by the defamatory material were not the sole cause of any damage to Mr Blake's reputation, as other imputations, which were substantially true, also conveyed a similar or greater degree of harm.

The primary legal issue before the Court of Appeal was the proper construction and application of the defence of contextual imputation under section 15 of the Defamation Act 1974 (NSW). Specifically, the court had to determine whether the injury to the plaintiff's reputation arising from the alleged defamatory imputations should be weighed against the injury arising from the contextual imputations, or against the injury arising from the matters by reason of which those contextual imputations are substantially true.

The Court of Appeal, comprising Spigelman CJ, Hodgson JA, and Rolfe AJA, held that the defence of contextual imputation requires the defendant to demonstrate that the contextual imputations, which are substantially true, convey a meaning that is either the same as, or more damaging than, the meaning conveyed by the defamatory imputations. The court reasoned that the purpose of the defence is to protect publishers from liability when the overall sting of the publication, when considered in its entirety and with substantially true contextual imputations, is not more damaging than the truth. The court clarified that the comparison is between the damage caused by the defamatory imputations and the damage caused by the substantially true contextual imputations, not the underlying facts that make them true.

Leave to appeal was granted, but the appeal was ultimately dismissed.