Torts Lecture 9
Defamation
Vicarious Liability
What is defamatory?
• “A defamatory statement may be defined as one
which tends to lower a person in the estimation
of his fellow men by making them think the less
of him. Frequently, it takes the form of an
imputation calculated to bring the plaintiff ‘into
hatred, contempt or ridicule’ (Parke’s B definition in
Parmiter v Coupland (1840) 6 M&W 105, 108), whether by direct
statement, irony, caricature or any other means;
but it is not necessary that the words have the
tendency to excite feelings of disapprobation,
provided they cause him to be shunned and
avoided by his fellows.” J.G. Fleming
Slander and Libel
• Slander – A defamatory statement in oral
or transient form actionable upon proof of
damage.
• Libel – A defamatory statement in written
form or other permanent form actionable
per se.
• In NSW, Section 8 Defamation Act 1974
has removed the distinction between
slander and libel.
Procedure
• Defamation actions are heard by a judge
and jury.
• Judge – tribunal of law determines the
meaning and linguistics.
• Jury – tribunal of fact determines whether
the matter is defamatory
Who May Be Defamed?
• Living persons – the dead cannot be defamed
no matter how distressing to the relatives and
friends.
• Corporations – although in NSW, only if the
corporation employs fewer than 10 persons at
the time of publication of the matter, and the
corporation has no subsidiaries (within the
meaning of the Corporations Act 2001of the
Commonwealth) at that time [see Section 20
Defamation Act 1974].
• Local Government Body, Professional
Association and Trade Union
Elements of Defamation
• Elements
– Matter must be capable of bearing a defamatory
meaning (tarnish reputation).
– Matter must be published.
– Matter must relate to the plaintiff (cannot sue for
someone else).
– Absence of lawful justification (or Defences).
Elements – Defamatory Meaning
• A question of interpretation,
depending on the circumstances, the
mode and the context of publication:
Charleston v News Group Limited (1995)
2A 11 ER. - Plaintiffs complained about photos of their
heads and shoulders displayed above semi-naked
models, the whole portraying sexual activity. No liability
as the accompanying article made it clear the matter was
lifted from another publication and criticised it as a form
of pornography
Elements – Defamatory Meaning
• False Innuendo
Section 9(1) Defamation Act 1974
(1) Where a person publishes any report, article, letter, note, picture, oral utterance or
other thing, by means of which or by means of any part of which, and its publication,
the publisher makes an imputation defamatory of another person, whether by
innuendo or otherwise, then for the purposes of this section:
(a) that report, article, letter, note, picture, oral utterance or thing is a "matter" , and
(b) the imputation is made by means of the publication of that matter.
Lewis v Daily Telegraph Ltd [1964] AC 234 – Articles published in the Daily
Telegraph and Daily Mail with headlines ‘Enquiry on Firm by City Police’ and ‘Fraud
Squad Probe Firm’ which stated the police were inquiring into affairs of a company of
which the plaintiff was chairman. Plaintiff alleged the words meant he was guilty of
dishonesty or fraud. Held on appeal the words in question were not capable of
inferring guilt of fraud in their ordinary meaning
Random House Pty Ltd v Abbott (1999) ATR 81-533 – Defendants had
published a statement indicating that two politicians had changed party
immediately after having sex with an unnamed female, who later married
one of the Ministers. The innuendo that each politician was prepared to
abandon his political principles in exchange for sexual favours was readily
drawn.
Elements – Publication
• Matter must have been communicated (or “published”)
to a person other than the plaintiff or there is no injury to
reputation – Section 9 Defamation Act 1974.
• Publication need not be to a large audience. “Utterance”
to a single individual is enough, provided he/she is other
than the plaintiff himself/herself.
• Old common law rule that communication between
spouses cannot constitute publication remains the law.
• Multiple distribution and republication – Section 20
Defamation Act 1974.
• Innocent republication, newsagent reselling paper –
Section 36 Defamation Act 1974.
Elements – Relate to the Plaintiff
• A defamatory statement is not actionable unless
published of and concerning the plaintiff. The plaintiff
need not be specifically mentioned.
• Test – Would a sensible reader reasonably identify the
plaintiff as the person defamed?
• Group defamation – the plaintiff may prove himself or
herself specifically identified, either the group is so small
that the accusation can reasonably be understood to
refer to each and every one of its members, or because
the circumstances of publication permit the conclusion
that it was he/she who was aimed at amongst the group
Elements – Absence of Lawful
Justification (or Defences)
1. Triviality or Unlikelihood of Harm (Section 13
Defamation Act 1974).
2. Truth (Sections 14 to 16).
3. Absolute privilege (Sections 17 to 17KA).
4. Qualified privilege (Sections 20 to 22).
5. Protected reports (Sections 24 to 26).
6. Court notices, official notices (Sections 27 &
28).
7. Comment (Sections 29 to 35).
Triviality (or Unlikelihood of Harm)
• Test - Would a reasonable person impute
a defamatory meaning?
Section 13 Defamation Act 1974: It is a
defence that the circumstances of the
publication of the matter complained of
were such that the person defamed was
not likely to suffer harm.
Truth - General
• Section 15 Defamation Act 1974
(1) ... the truth of any imputation complained of
is not a defence as to that imputation except as
mentioned in this section.
(2) It is a defence as to any imputation
complained of that:
(a) the imputation is a matter of substantial
truth, and
(b) the imputation either relates to a matter of
public interest or is published under qualified
privilege.
Truth – Contextual Imputations
• Section 16 Defamation Act 1974
(1) Where an imputation complained of is made by the publication of
any report, article, letter, note, picture, oral utterance or other thing
and another imputation is made by the same publication, the latter
imputation is, for the purposes of this section, contextual to the
imputation complained of.
(2) It is a defence to any imputation complained of that:
(a) the imputation relates to a matter of public interest or is
published under qualified privilege,
(b) one or more imputations contextual to the imputation complained
of:
(i) relate to a matter of public interest or are published under
qualified privilege, and
(ii) are matters of substantial truth, and
(c) by reason that those contextual imputations are matters of
substantial truth, the imputation complained of does not further
injure the reputation of the plaintiff.
Truth – Substantial Truth
• The defendant need only prove the substantial truth of the statement
Alexander v NE Rys (1865) 122 ER 1221 – statement that the
plaintiff had been sentenced to a fine or three weeks imprisonment
was justified by showing that he had been given the alternative of
two weeks’ imprisonment.
• Plaintiff may succeed where the defendant is unable to justify all of
the statement
Becker v Smith’s Newspapers [1929] SASR 469 – defendant
published the plaintiff was a blackmailer, liar, swindling share pusher
and illegal immigrant. Plaintiff succeeded as the defendant was
unable to justify the last allegation.
Truth – Public Interest
•
JG Fleming proposes two broad divisions of matters:
1.
Government (national and local, including behaviour of
members of those governments), and the conduct of
public institutions and services; and
2.
Matters submitted to the public for its attention,
whether for its edification, instruction, instruction or
persuasion.
Mutch v Sleeman (1928) 29 SR(NSW) 125 –
statement that a member of parliament was a wifebeater in relation to an incident that occurred four
years previously was found to have no relevance to
the public interest and was therefore defamatory.
Absolute Privilege
Three established occasions of absolute privilege:
1.
Parliamentary papers – Section 17 Defamation Act 1974.
2.
•
•
Statements in the course of judicial proceedings
Other statutory bases - Sections17A-17KA.
Section 18 - Proceedings of inquiry
There is a defence of absolute privilege for a publication in the course of an inquiry
made under the authority of an Act or Imperial Act or under the authority of Her
Majesty, of the Governor, or of either House or both Houses of Parliament.
•
Section 19 - Report of inquiry
•
Where a person is appointed under the authority of an Act or Imperial Act or under
the authority of Her Majesty, of the Governor or of either House or both Houses of
Parliament to hold an inquiry, there is a defence of absolute privilege for a
publication by the person in an official report of the result of the inquiry.
Common Law bases in judicial proceedings.
3.
Communications between high-ranking officers of State.
Qualified Privilege
• The publication of defamatory statements is in some
instances protected by qualified privilege, in recognition
of certain necessities of social intercourse.
• Section 22 (1) – Defamation Act 1974:
Where, in respect of matter published to any person:
(a) the recipient has an interest or apparent interest in
having information on some subject,
(b) the matter is published to the recipient in the course
of giving to the recipient information on that subject, and
(c) the conduct of the publisher in publishing that matter
is reasonable in the circumstances, there is a defence of
qualified privilege for that publication.
Qualified Privilege
Section 22 (2A) Defamation Act 1974
In determining for the purposes of subsection (1) whether the conduct of the
publisher in publishing matter concerning a person is reasonable in the
circumstances, a court may take into account the following matters and
such other matters as the court considers relevant:
(a) the extent to which the matter published is of public concern,
(b) the extent to which the matter published concerns the performance of
the public functions or activities of the person,
(c) the seriousness of any defamatory imputation carried by the matter
published,
(d) the extent to which the matter published distinguishes between
suspicions, allegations and proven facts,
(e) whether it was necessary in the circumstances for the matter published
to be published expeditiously,
(f) the sources of the information in the matter published and the integrity of
those sources,
(g) whether the matter published contained the substance of the person’s
side of the story and, if not, whether a reasonable attempt was made by the
publisher to obtain and publish a response from the person,
(h) any other steps taken to verify the information in the matter published.
Qualified Privilege
• Principle categories of Qualified Privilege:
– Freedom of political communication
Theophanos v Herald Weekly (1994) 182 CLR
104
– Defamation law and the Constitution
Lange v ABC (1997) 71 ALJR 818.
– Mistaken character of recipient
s21 Defamation Act 1974.
Protected Reports
• Section 24(1) of the Defamation Act 1974
"protected report" means a report of proceedings
specified in clause 2 of Schedule 2 (for example,
inquiry held under the legislation or authority of
the government of any country ).
• Section 24(2) defence of publication of a fair
public report
• Requirement of good faith for public information
or the advancement of education – Section 26.
Court Notices and Official Notices
•
Section 27 Defamation Act
(1)
(2)
There is a defence for the publication of a notice in accordance with the direction of a court of
any country.
Where a defence is established under subsection (1), the defence is defeated if, but only if, it is
shown that the publication complained of was not in good faith for the purpose of giving effect to
the direction.
•
Section 28
(1) There is a defence for the publication of any notice or report in accordance with an official request.
(2) Where a defence is established under subsection (1), the defence is defeated if, but only if, it is
shown that the publication complained of was not in good faith for the purpose of giving effect to
the request.
(3) Where there is an official request that any notice or report be published to the public generally or to
any section of the public, and the notice or report is or relates to a matter of public interest,
there is a defence for a publication of the notice or report, or a fair extract or fair abstract from,
or a fair report or summary of, the notice or report.
(4) Where a defence is established under subsection (3), the defence is defeated if, but only if, it is
shown that the publication complained of was not in good faith for the information of the public.
(5) This section does not affect the liability (if any) in defamation of a person making an official request.
(6) In this section, "official request" means a request by: (a) an officer of the government (including a
member of a police force) of any Australian State, or of the Commonwealth, or of any Territory
of the Commonwealth, or (b) a council, board or other authority or person constituted or
appointed for public purposes under the legislation of any Australian State, or of the
Commonwealth, or of any Territory of the Commonwealth.
•
Comment
• The defence of comment protects honest expressions of opinion on
matters of public interest. The rationale is that the truth of opinions
cannot be objectively tested.
• Like the defence of Truth, Comment must relate to a matter of public
interest:
Section 31 Defamation Act 1974:
• The defences under this Division are not available to any comment
unless the comment relates to a matter of public interest.
Gardner v Fairfax Newspapers (1942) SR(NSW) 171 at 174 per Jordan
CJ “A critic is entitled to dip his pen in gall for the purpose of
legitimate criticism, and no one need be mealy-mouthed in
denouncing what he regards as twaddle, daub or discord” .
Comment
• Opinion or fact:
Kemsley v Foot [1952] AC 345 – Foot published an article
headed “Lower than Kemsley” criticising the conduct of a
newspaper, Beaverbrook Press, unrelated to newspapers owned by
the plaintiff, Kemsley. The House of Lords held that a sufficient
factual basis exised for the headline to be comment as Kemsley was
a proprietor of a number of newspapers, whose standards of
journalism were being unfavourably commented on by Foot.
Kemsley’s ownership of newspapers and their content was public
knowledge.
Remedies – Offer of Amends
Section 9D Defamation Act 1974:
(1)
The publisher may make an offer to make amends to the aggrieved person.
(3)
An offer to make amends :
(a) must be in writing, and
(b) must be readily identifiable as an offer to make amends under this section, and
(c) must include an offer to publish, or join in publishing, a reasonable correction (if
appropriate in the circumstances) of the matter in question, and
(d) must include an offer to publish, or join in publishing, a reasonable apology (if
appropriate in the circumstances) in relation to the matter in question, and
(e) if material containing the matter has been given to someone else by the
publisher or with the publisher’s knowledge—must include an offer to take, or join
in taking, reasonable steps to tell the other person that the matter is or may be
defamatory of the aggrieved person, and
(f) must state whether it is a qualified offer and, if so, set out the defamatory
imputation in relation to which it is made, and
(g) must include an offer to pay the expenses reasonably incurred by the
aggrieved person before the offer was made and the expenses reasonably
incurred by the aggrieved person in considering the offer,
(h) may include particulars of any correction or apology made, or action taken,
before the date of the offer, and
(i) may include an offer to pay compensation for any economic or non-economic
loss of the aggrieved person.
Remedies - Injunction
Courts are generally unwilling to grant an
injunction at an interlocutory level as it may
infringe freedom of speech and amount to a
usurpation by the judge of the function of the
jury.
However, in cases where the defendant’s case is
hopeless, the courts will issue an injunction
Chappell v TCN Channel 9 (1988) 14 NSWLR 153
Remedies - Damages
Part 4 Defamation Act 1974 (Sections 46 to 48).
• Relevant harm defined in s46(1) as harm
suffered by the person defamed.
• Exemplary damages are not available in NSW –
Section 46(3)(a).
• Relevant factors s46A – there must be an
appropriate and rational relationship between
relevant harm and the amount of damages
awarded.
VICARIOUS RELATIONS AND
AGENCY
• An agent acts for the principal; but the liability of
the principal for the act of the agent is not based
on vicarious liability
• The liability of the principal is based on the
maxim: qui facit per alium, facit per se
• The agent acts in a representative capacity and
has the authority to act for the principal but is not
necessarily a servant
VICARIOUS LIABILITY
• Vicarious liability makes D (usually
the master/employer) liable for the
torts of another (usually his or her
servant/employee) although the
master is without any blame or fault.
SERVANTS AND
INDEPENDENT CONTRACTORS
• Vicarious liability arises only in respect of the torts
of the servant
• The master/employer is therefore responsible only
for the torts of the servant and not the independent
contractor
• For the master/employer to be held liable, the
tortfeasor must:
– be a servant
– commit the tort in the course of his or her
employment
Non-delegable duties and
vicarious liability
Vicarious liability arises in circumstances “when
the law holds one person responsible for the
misconduct of another, although he is himself
free from blameworthiness or fault” (Fleming J,
Law of Torts (9th edition) at 409)
Non-delegable duty arises in circumstances where
a person cannot be excused from liability even if
reasonable care is exercised in entrusting
responsibility to another person
Civil Liability Act:
Non-delegable duties and vicarious
liability
5Q Liability based on non-delegable duty
(1) The extent of liability in tort of a person ("the
defendant") for breach of a non-delegable duty to
ensure that reasonable care is taken by a person in the
carrying out of any work or task delegated or otherwise
entrusted to the person by the defendant is to be
determined as if the liability were the vicarious liability
of the defendant for the negligence of the person in
connection with the performance of the work or task.
(2) This section applies to an action in tort whether or not it
is an action in negligence, despite anything to the
contrary in section 5A.
Non-delegable duties and Vicarious
duties
• New South Wales v Lepore ; Samin v Queensland; Rich
v Queensland [2003] HCA 4 (6 February 2003)
- Liability of school authority
- Alleged sexual assault on pupil by teacher
- Whether school authority in breach of non-delegable duty of care
- Concept of non-delegable duty
- Whether school authority vicariously liable
- Test for imposition of vicarious liability.
WHO IS A SERVANT?
• A servant is one who is under a contract of service
to another an independent contractor is under a
contract for services
• The contractor is paid for the job by results rather
than for time spent, receives a fee or commission,
the servant receives wages
• The contractor is usually employed on a casual
basis, the servant on a permanent basis
• The contractor usually specifies his/her work
schedule and supplies his/her own tools
• The master may select the servant for the task
WHO IS A SERVANT?:
THE CONTROL TEST
• If the Master controls what the employee does and
how it is done, then the employee is a servant. The
relationship will give rise to Vicarious Liability.
• Zuijs v Wirth Bros: The case of the trapeze artist
• What is essential is whether there is lawful authority
to command or give directives if there is scope for it.
• Stevens v Brodribb Sawmilling
‘IN THE COURSE OF
EMPLOYMENT’
• D is liable only if the servant committed
the tort in the course of his or her
employment
– Deaton v Flew
– Morris v Martin