Understanding the Contextual Truth Defence in Defamation Law

The Al Muderis Case: A Recent Application

The Federal Court's decision in Al Muderis v Nine Network Australia Pty Ltd [2025] FCA 909 provides valuable insights into the operation of the contextual truth defence in defamation proceedings. Dr Munjed Al Muderis, an orthopaedic surgeon specialising in osseointegration procedures, brought defamation proceedings against Nine Network and associated media outlets concerning a Four Corners broadcast titled "The Agony" and related online articles published in 2023. The publications examined the experiences of certain patients who had undergone osseointegration surgery with Dr Al Muderis, with the surgeon alleging the materials conveyed 75 defamatory imputations about his surgical practice and patient care. The Court ultimately found that the respondents had established the contextual truth defence under section 26 of the Defamation Act 2005 (NSW), dismissing the application.

The Legislative Framework

Section 26 of the Defamation Act 2005 (NSW) provides a complete defence to defamation where a defendant can establish two essential elements. First, the published matter must carry one or more imputations that are substantially true (known as "contextual imputations"). Second, any defamatory imputations complained of by the plaintiff that are not contextual imputations must not further harm the plaintiff's reputation because of the substantial truth of the contextual imputations.

The defence underwent significant amendment on 1 July 2021, with the introduction of section 26(2) proving particularly important. As the Court noted in Al Muderis v Nine Network Australia Pty Ltd [2025] FCA 909, this provision means it is no longer necessary that a defendant's contextual imputations be different in substance from a plaintiff's pleaded imputations. A defendant may now rely on any imputations carried by a publication - whether the same as, permissible variants of, carrying a common sting with, or entirely different in substance from the imputations of which the plaintiff complains - as contextual imputations.

The Defence Must Defeat All Defamatory Stings

A fundamental principle of the contextual truth defence is that it must defeat the entire defamatory matter of which the plaintiff complains. As established in Besser v Kermode [2011] NSWCA 174; (2011) 81 NSWLR 157 at [78], the defence "must defeat the whole defamatory matter (cause of action) of which the plaintiff complains, that is to say all of the plaintiff's stings." This means that the substantial truth of the contextual imputations must be sufficiently serious and comprehensive to render any remaining unproven imputations incapable of causing further reputational harm.

Assessing Further Harm: Facts Not Just Imputations

One of the most significant aspects of the contextual truth defence concerns how courts assess whether residual imputations cause "further harm" to reputation. The Full Court's decision in Seven Network (Operations) Limited v Greiss [2024] FCAFC 162 recently clarified this issue, confirming the approach established in John Fairfax Publications Pty Ltd v Blake [2001] NSWCA 434; (2001) 53 NSWLR 541.

In Blake, Spigelman CJ observed that section 16(2)(c) of the predecessor Defamation Act 1974 (NSW) does not focus attention on a contextual imputation as such, but on the proposition that such an imputation is a "matter of substantial truth." The Court must focus on the facts, matters and circumstances said to establish the truth of the contextual imputation, rather than on the terms of the contextual imputation itself. This approach was confirmed to apply equally to the current section 26 in Greiss.

As Applegarth J noted in Nationwide News Pty Ltd v Weatherup [2017] QCA 70; [2018] 1 Qd R 19 at [46], "The requirement to prove no further harm to the plaintiff's reputation focuses on the facts, matters and circumstances which establish the substantial truth of the contextual imputations. This reflects the language of the section."

Substantial Truth and the Sting of the Libel

When establishing contextual imputations as substantially true, defendants must prove every material part of an imputation is true, with the defence concerned with meeting the sting of the defamation, as confirmed in Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; (2010) 278 ALR 232 at [138]. A "material part" is any detail which alters or aggravates the character of the imputations, as established in Rofe v Smith's Newspapers Ltd (1924) 25 SR (NSW) 4 at 22.

The classic statement of principle comes from Lord Shaw of Dunfermline in Sutherland v Stopes [1925] AC 47 at 78-79, who explained that the plea of justification "must not be considered in a meticulous sense" and that "all that was required to affirm that plea was that the jury should be satisfied that the sting of the libel or, if there were more than one, the stings of the libel should be made out."

The Character as Criminal Example

The contextual truth defence's operation can be illustrated through cases involving imputations about criminal character. In State of New South Wales v Wraydeh [2019] NSWCA 192, discussed in Al Muderis v Nine Network Australia Pty Ltd [2025] FCA 909, the State pleaded contextual truth relying on an imputation that "the plaintiff is a criminal," seeking to prove this through evidence of prior criminal convictions unrelated to the events giving rise to the proceedings.

The Court of Appeal's analysis highlighted that whether a person should be characterised in the present tense as "a criminal" is not answered determinatively by establishing past criminal offences. As McCallum JA observed, this "ignores the possibility of change and rehabilitation" and "not every prior conviction would be regarded as necessarily warranting that label." Simpson AJA similarly questioned whether "a person convicted of shoplifting at age 18 [should] forever be branded 'a criminal'."

Strategic Considerations for Defendants

The contextual truth defence offers defendants significant strategic advantages, particularly following the 2021 amendments. Defendants can now rely on the plaintiff's own pleaded imputations as contextual imputations if they can prove them substantially true. This allows defendants to effectively use the plaintiff's case against them, proving some of the plaintiff's imputations to neutralise the sting of those they cannot prove.

The defence is particularly powerful where publications convey imputations involving general charges about a person's character or conduct. Where such general charges are made, defendants are entitled to give particulars demonstrating their truth by reference to a wide variety of matters not confined to facts in the article, as established in Maisel v Financial Times Limited (1915) 112 LT 953.

Practical Application

The application of the contextual truth defence in Al Muderis v Nine Network Australia Pty Ltd [2025] FCA 909 provides instructive guidance on how the defence operates in practice. The respondents' strategic approach, as articulated at [224], was to rely on all imputations to which they had pleaded a justification defence as contextual imputations, including those the Court ultimately found were not conveyed by the publications.

The Imputations at Issue

The Court found at [8] that while certain imputations were not conveyed (including the "Disputed Imputations" at [10.1]-[10.6], [13.2], [13.6], [13.20], [16.4], [16.8], [16.13], [16.15], [16.20], [16.23], [16.27], [16.29] and [16.30]), the remaining imputations that were conveyed provided sufficient basis for the contextual truth defence. Significantly, at [219], the Court accepted that many of the applicant's pleaded imputations involved "general charges" capable of being justified by reference to facts not stated in the publications.

These general charges included serious professional allegations such as:

  • Imputation [10.1]: "negligently operated on his patients"

  • Imputation [10.2]: "deliberately misled his patients about his surgical abilities"

  • Imputation [13.4]: "prioritises money over his patients' care"

  • Imputation [13.14]: "runs his surgical practice as a numbers game"

  • Imputation [13.18]: "exploited vulnerable patients"

  • Imputation [16.1]: "is a callous surgeon who routinely left patients to rot"

  • Imputation [16.2]: "routinely negligently failed to provide after surgery care"

  • Imputation [16.25]: "negligent in his selection of patients"

  • Imputation [16.26]: "habitually failed to explain risks and complications"

The Respondents' Strategic Approach

As the Court noted at [224], the respondents articulated their position clearly: they contended that ordinary reasonable readers and viewers would understand references to "surgery" and like terms as extending to all aspects of Dr Al Muderis's surgical practice, not merely performance "in the operating theatre." This broader interpretation encompassed "pre-operative considerations and consultations and post-operative care, including patient selection, disclosure of risks, misleading patients, making false promises, abandoning patients and negligent post-surgery care."

The respondents submitted at [224] that so long as these broader imputations were conveyed, they were "permitted to rely on them as contextual imputations for the purposes of s 26." This strategic framing allowed them to marshal evidence about the full spectrum of Dr Al Muderis's professional conduct, not just his technical surgical skills.

Establishing Substantial Truth Through Multiple Incidents

In applying the principle from Maisel v Financial Times Limited (1915) 112 LT 953, referenced at [219], the Court accepted that the respondents could justify general charges by reference to "a wide variety of matters which are not confined to the facts in the article." This meant the respondents could present evidence of multiple patient experiences beyond those specifically mentioned in the Four Corners broadcast and articles.

The Court's approach at [226] followed the established principle from John Fairfax Publications Pty Ltd v Blake [2001] NSWCA 434; (2001) 53 NSWLR 541 at [61] and Roberts-Smith v Fairfax Media Publications Pty Ltd (No 41) [2023] FCA 555 at [2602], weighing the particulars and evidence relied upon in support of the substantial truth of the contextual imputations.

The "Swamping" Effect

The respondents' submission at [224] exemplified the strategic power of the contextual truth defence: they argued that the "Disputed Imputations in this broader sense, together with the other imputations which are the subject of the contextual truth defence... are substantially true and that, taken together, the substantial truth of the contextual imputations swamps the defamatory effect of any residual imputations which the Court may find have not been proven to be true."

The Court ultimately accepted this argument, finding at [8(3)] that "the respondents have established the defence of contextual truth under s 26 of the Defamation Act in relation to the Publications in which imputations are conveyed." This finding meant that even though not all 75 pleaded imputations were proven or even conveyed, the substantial truth of the contextual imputations that were established was sufficient to defeat the entire claim.

Key Takeaway for Practitioners

The case demonstrates that defendants need not prove every imputation complained of by a plaintiff. Where defendants can establish the substantial truth of sufficiently serious contextual imputations about professional misconduct - particularly those involving systematic patterns of behaviour rather than isolated incidents - these may neutralise the sting of any unproven imputations. The defence is particularly powerful where, as at [219], the plaintiff has pleaded imputations as general charges, opening the door for defendants to lead wide-ranging evidence of conduct beyond that specifically referenced in the publication.

Conclusion

The contextual truth defence represents a powerful tool in defamation proceedings, allowing defendants to defeat claims by establishing that the substantial truth of certain imputations renders any remaining defamatory material incapable of causing further reputational harm. The recent authorities, particularly Al Muderis v Nine Network Australia Pty Ltd [2025] FCA 909 and Seven Network (Operations) Limited v Greiss [2024] FCAFC 162, confirm that courts will focus on the underlying facts establishing the truth of contextual imputations rather than merely comparing imputations in the abstract. For practitioners, understanding this defence's operation is essential for both prosecuting and defending defamation claims in Western Australia and throughout the uniform defamation law jurisdictions.