Entertainment & Arts Law · Defamation, Reputation & Media
Reviews, criticism and the honest opinion defence.
A harsh review can still be lawful. The honest opinion defence protects genuine criticism of a public performance or work, so long as it is opinion, on a matter of public interest, and built on facts that are true. Here is how it works, and where it fails.
By Aaron Kernaghan · Brady & Associates Lawyers · 16 September 2026
This article is for informational purposes and general commentary only. It does not constitute legal advice and does not create a solicitor-client relationship.
Criticism is part of the arts. A critic pans a show, an audience member posts a one star review, a comedian mocks a public figure from the stage. Some of that stings, and a person who feels wronged may reach for defamation. The main answer for genuine criticism is the honest opinion defence. It is why a bad review is not automatically a lawsuit, and why the line between an opinion and a false statement of fact does so much of the work.
What is the honest opinion defence?
The honest opinion defence is set out in section 31 of the Defamation Act 2005, which is the uniform defamation law adopted in each Australian state and, in the Australian Capital Territory, in the Civil Law (Wrongs) Act 2002 (ACT). It protects a defamatory statement where the statement is an expression of opinion rather than a claim of fact, the opinion is about a matter of public interest, and the opinion rests on true or otherwise protected material. The defence exists because free comment on public matters, including the arts, is worth protecting even when the comment is unwelcome.
Why reviews and criticism rely on it
A review is opinion by nature. It tells the reader what the writer thought of a performance, a script, a recording or a show. Section 31 is built for exactly that. It lets a critic say a production was tedious, a singer was flat, or a script was thin, without having to prove the value judgment was correct. What the critic cannot do is invent facts. The protection is for the opinion, not for a false factual claim dressed up as one.
The three things a defendant must prove
To make out the defence, the defendant proves three things. First, that the matter was an expression of opinion rather than a statement of fact. Second, that the opinion related to a matter of public interest. Third, that the opinion is based on proper material. If any one of the three is missing, the defence fails. There are three forms of it: the opinion of the defendant, the opinion of an employee or agent of the defendant, and the opinion of a commentator whose view the defendant has published. A publisher who runs a reader's review is relying on the commentator form.
Opinion or fact: the line that decides most cases
Most honest opinion cases turn on whether the words are opinion or fact. The test is how the ordinary reasonable reader or listener would understand them in context. "The lead actor was wooden" reads as a judgment. "The lead actor was drunk on stage" reads as an assertion of fact, and if it is untrue it is not saved by calling it a review. Courts look at the whole publication, its tone, and its setting. The High Court examined this line in Channel Seven Adelaide Pty Ltd v Manock, available on JADE. The safe habit for a reviewer is to make the evaluation clearly an evaluation, and to keep the underlying facts accurate and visible.
What is a matter of public interest?
The second limb is usually easy for the arts. A public performance, a published book, a recording released for sale, a show open to ticket buyers, are all matters of public interest that people are free to discuss. Reviewing a work that has been put before the public is squarely within the defence. The limb does more work when the comment strays into private life that has nothing to do with the public work, which is where a reviewer should be careful.
What is proper material?
The third limb is where reviews most often come undone. An opinion is based on proper material if the facts it rests on are substantially true, or are otherwise protected, for example because they were stated on a privileged occasion. Those facts must also be set out in the review, referred to in it, generally known, or accessible from it, for instance through a link. The 2021 reforms to the uniform law updated this rule to recognise references and links. If the facts underneath the opinion are wrong, the opinion is not based on proper material and the defence fails, however honestly the view was held.
How the defence is lost
Even a well founded opinion can be defeated. The plaintiff can beat the defence by proving the opinion was not honestly held by the person who expressed it. For the defendant's own opinion, that means showing the defendant did not actually hold the view. For a published commentator, it means showing the defendant had reasonable grounds to believe the commentator did not honestly hold it. So malice, in the sense of publishing a view no one actually holds, sinks the defence. Genuine dislike of a show, honestly felt and honestly expressed, does not.
Reviews, satire and social media
The same rules apply whether the review runs in a newspaper, on a blog, or in a single social media post. A short online review can be defamatory, and it can also be protected by honest opinion if it meets the three limbs. Satire and parody get some room because the audience understands they are not literal, but a joke that carries a false factual sting can still be actionable. Naming a real person in a comedy set or a play raises the same questions, and is worth its own care. The serious harm threshold that a plaintiff must clear before suing is covered in the note on the serious harm threshold in Australian defamation law.
What this means for reviewers and for those reviewed
For a reviewer, the defence is generous but conditional. Keep opinion as opinion, stick to the public work, and get the underlying facts right, because a single false fact can lose the protection for the whole piece. For a performer, producer or company on the wrong end of a review, a harsh notice is usually lawful comment, not defamation, and a complaint that only attacks an honest opinion is unlikely to succeed. Where a review crosses into a false factual claim that causes real harm, there may be a case, and the first formal step is often a concerns notice. The wider setting is covered in the note on defamation and the performing arts.
Frequently asked.
Can I be sued for writing a bad review in Australia?
A negative review is not defamatory just because it is harsh. If it lowers someone's reputation it can be defamatory, but the honest opinion defence in section 31 of the Defamation Act 2005 protects genuine criticism that is opinion, about a matter of public interest, and based on true facts. A false statement of fact in a review is not protected.
What is the honest opinion defence?
It is a defence to defamation that protects an expression of opinion, as opposed to a statement of fact, where the opinion is about a matter of public interest and is based on proper material. It is set out in section 31 of the Defamation Act 2005 and, in the ACT, in the Civil Law (Wrongs) Act 2002.
What is the difference between fact and opinion in a review?
Opinion is an evaluation or judgment, such as calling a performance dull. Fact is a verifiable assertion, such as saying a performer was drunk on stage. The test is how the ordinary reasonable reader would understand the words in context. Only opinion is protected by the honest opinion defence.
What is proper material for the honest opinion defence?
The facts the opinion rests on must be substantially true, or otherwise protected, and must be set out in the publication, referred to in it, generally known, or accessible from it, including by a link. If the underlying facts are wrong, the opinion is not based on proper material and the defence fails.
How can the honest opinion defence be lost?
The plaintiff can defeat it by proving the opinion was not honestly held. For the writer's own opinion, that means showing the writer did not actually hold the view. For a published third party's opinion, it means showing the publisher had reasonable grounds to believe the commentator did not honestly hold it.
Does honest opinion protect satire and social media posts?
The defence applies to any medium, including social media, and satire gets some room because audiences understand it is not literal. A joke or post that carries a false factual sting can still be actionable, so the same care about fact versus opinion applies.
If you are a performer, producer, venue, or independent practitioner and this raises a question about your own situation, Aaron Kernaghan and the team at Brady & Associates Lawyers can give you tailored guidance. Call 0421 717 019 or contact the firm.
This article is for informational purposes and general commentary only. It does not constitute legal advice and does not create a solicitor-client relationship. It reflects the law in Australia as at 16 September 2026, with a focus on Commonwealth law and New South Wales and ACT practice. The law changes and applies differently to every set of facts. Written by Aaron Kernaghan, Brady & Associates Lawyers.