Criminal defamation
(1) The common law misdemeanour of criminal libel remains abolished. (2) Subsection (1) does not affect the law relating to blasphemous, seditious or obscene libel. (3) A person who, without lawful excuse, publishes matter defamatory of another living person (the victim)— (a) knowing the matter to be false, and (b) with intent to cause serious harm to the victim or any other person or being reckless as to whether such harm is caused, is guilty of an offence. (4) A defendant in proceedings for an offence under this section has a lawful excuse for the publication of defamatory matter about the victim if, and only if, the defendant would, having regard only to the circumstances happening before or at the time of the publication, have had a defence for the publication if the victim had brought civil proceedings for defamation against the defendant. (5) The prosecution bears the onus of negativing the existence of a lawful excuse if, and only if, evidence directed to establishing the excuse is first adduced by or on behalf of the defendant. (6) On a trial before a jury for an offence under this section— (a) the question of whether the matter complained of is capable of bearing a defamatory meaning is a question for determination by the judicial officer presiding, and (b) the question of whether the matter complained of does bear a defamatory meaning is a question for the jury, and (c) the jury may give a general verdict of guilty or not guilty on the issues as a whole. (7) Proceedings in a court for an offence under this section cannot be instituted without the written consent of the Director of Public Prosecutions. (8) In those proceedings, a consent purporting to have been signed by the Director of Public Prosecutions is, without proof of the signature, evidence of that consent. (9) The commencement of criminal proceedings for an offence under this section does not prevent— (a) the commencement of civil proceedings for defamation against the defendant in the criminal proceedings, or (b) the determination of the civil proceedings pending the determination of the criminal proceedings. (10) If the question whether or not a person committed an offence (other than offence under this section) arises in proceedings for an offence under this section, section 42 of the Defamation Act 2005 applies to the proof of the commission of that offence in the same way as it applies to such proof in civil proceedings for defamation. (11) In this section, publish and defamatory have the meanings that they have in the law of tort (as modified by the Defamation Act 2005) relating to defamation.
Sourced from the New South Wales Legislation website at 8 June 2026. For the latest information on New South Wales Government legislation please go to https://www.legislation.nsw.gov.au. Verify the current text against the official source before relying on it.
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