TOPIC 1 – ESTABLISHING DEFAMATION
Introduction
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Balance freedom of expression and protection of honour and reputation
Recognised by international law ! International Convention on Civil and Political Rights, Article 19
Freedom of speech is limited through legislation, e.g. racial discrimination or ‘hate speech’
Laws are intended to protect an individuals reputation against false or unjustified imputations
communicated either to other individuals or to the community as a whole
Lange v ABC – “the purpose of the law of defamation is to strike a balance between the right to reputation
and freedom of speech!” (at 568
Uniform defamation laws (UDL)
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Section 6(2) – common law principles retained (e.g. in establishing defamation)
Section 7(2) – actionable per se
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How may defamatory matter be expressed or conveyed?
o Spoken or written words
Libel or slander?
o This distinction has been removed (section 7)
o Distinction abolished 1 January 2006
o Slander – impermanent defamatory matter, e.g. spoken
o Libel – defamatory matter that is in a permanent form, e.g. writing
What is defamatory?
o Must disparage the plaintiff’s reputation, not merely hurt their feelings
o The tors protects against injuring one’s reputation
o There is no one definition of defamation at common law
What type of reputation can be damaged?
o A person’s private, social, business, professional or trading reputation can be defamed
o NB. If a person’s business, professional or trading reputation is affected, it must be their personal
reputation affected in that field, and not the corporations interests itself
o False statements which injure a business can be actionable through injurious falsehood
o Baric v Doherty (1987) – newspaper report alleged a solicitor entered a guilty plea for his client
without consulting implied he was guilty of gross professional misconduct. Held to be defamatory.
o Shepheard v Whitaker (1875) – defamatory to say someone is insolvent because it implies they
lack business skills
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Elements of the tort of defamation
The plaintiff has the burden of establishing:
1. Defamatory matter
2. Reference to the plaintiff
3. Publication to a third party
Step 1: Defamatory matter
What is defamatory matter?
There are two steps to determining whether the material contains defamatory
imputations
a) Identify the imputations from the material that are capable of bearing defamatory
meaning(s)
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Identify the meanings that can be drawn that are potentially defamatory
EXAM – LIST THE DEFAMATORY IMPUTATIONS IN THE MATERIAL
THE TEST FOR DETERMING WHETHER DEFAMATORY SUGGESTIONS WOULD BE
TAKEN IS: Whether any ‘right thinking members of society’ or ordinary people, not avid
for scandal, would understand the words in a defamatory sense
Whether they intended to defame was irrelevant
Ordinary reasonable reader is not a person ‘avid for scandal’ – John Fairfax Publications Pty Ltd
v Rivkin per McHugh J
Media needs to use the word “alleged” a lot
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Sensationist headlines are on a fine line
Generally, the media is on safe ground if they are reporting factually that the plaintiff is being
suspected of committing a crime, or have been arrested of committing a crime ! run into
problems where they actually impute that the plaintiff has committed the crime or a reasonable
basis for the belief the police have against them. Here, they have to prove that the plaintiff
actually committed the crimes – Mirror Newspapers Ltd v Harisson (starting point) – readers are
not going to be overly keen to impute guilt from the media report, that readers approach these
things with knowledge of the presumption of innocent. The reasonable reader is thought to be
one to keep in mind the presumption of innocent and that arrest doesn’t mean guilt.
" This is the general starting point for this kind of situation
" Favell v Queensland Newspapers Pty Ltd (2005) – plaintiff’s house burnt down and the
fire authorities suspected it was arson. The newspapers reported the fire and gave
prominence that the plaintiff was trying to get permission to knock the house down and to
build apartment – need to look at the material as a whole ! didn’t intend to, but this is
the conclusion that the ordinary reasonable reader would draw looking at the article as a
whole ! standards which apply, see: Kirby J
Material needs to be read as a whole
The context + occasion on which communication is made is very important
" Book or newspaper article (considerable scrutiny expected) vs. TV or radio program
(impressionistic views formed)
Not defamatory if material reasonably interpreted in a light hearted way (eg merely a joke) or as
abuse
Meanings of words change over time – meaning imputed to a word changes over time, e.g.
bastard
" Be merely abuse, eg during a road rage incident (not defamatory),
" Impute P is ruthless, uncaring or callous (defamatory),
" Impute P was born out of a marriage (probably no longer defamatory)
" Nowadays, be used as a term of affection!
Charleston v News Group Newspapers Ltd – claim by actors that are Harrold and Madge of
‘Neighbours’, in English courts, because an English newspaper had super imposed their faces on
a model in a pornographic pose and said something like “look what they’re up to”. They sued for
defamation. Said that readers looking at that headline and the picture would give the imputation
that they were involved in pornography. The text explained that some company was doing this
with famous people and was critical of this. Courts held that if you just look at the picture, but
when you look at the article as a whole, it wasn’t suggesting pornographic acts by the actors.
Assume that readers look through the article, not just the pictures
Defamatory imputations might be express (literal meaning)
" Eg P is a liar or a thief
Literal meaning actionable but:
Look not just at literal meanings, but also secondary meanings (innuendos or insinuations).
2 types of innuendos:
" ‘Popular’ or ‘false’ innuendos
- Most common form of innuendo formed
- Don’t need special evidence, it’s the ordinary meaning drawn between the
ordinary reasonable person
- Imputation might be drawn because a word has a secondary meaning:
Murphy v Plasterers Society – Statement during strike that P a ‘scab’
imputed P was treacherous and disloyal to fellow workers
# E.g. gay, bastard ! context needs to be looked at and
examined
# There is one community standard (as per the courts), so ask
whether the average person would think less of the plaintiff,
e.g. calling someone a ‘scab’ during a strike (normal person,
not effective, to a fellow worker, untrustworthy. Is it
defamatory today?)
- Or imputation might be drawn by ‘reading between the lines’: Evans v John
Fairfax - Statement P “close” to PM and had been “rapidly promoted”
imputed not qualified for job and only advanced through cronyism
- Bjelke Peterson v Warburton – Statement that government ministers had
their “hands in the till” impute corruption
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Look at the secondary meaning of the phrases
Reports of criminal investigations:
# Ok if material merely imputes P accused or suspected of a
crime, or being investigated for a crime (provided true)
# But defamatory to impute that P has actually committed the
crime or there is a reasonable basis for the accusation or
investigation
# Mirror Newspapers Ltd v Harrison
# Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 –
plaintiff’s house burnt down and the fire authorities
suspected it was arson. The newspapers reported the fire
and gave prominence that the plaintiff was trying to get
permission to knock the house down and to build apartment
– need to look at the material as a whole ! didn’t intend to,
but this is the conclusion that the ordinary reasonable reader
would draw looking at the article as a whole ! standards
which apply, see: Kirby J
‘Legal’ or ‘true’ innuendos
- Convey a defamatory meaning with only person with particular extrinsic
knowledge
- Even though to most people it looks fine, to those with extra knowledge, will
convey defamatory meaning
- Requirement of publication – does it need to be published to the people with
the extra knowledge? YES – not enough to show publication to any third
party, needs to be to a third party who had that particular extrinsic knowledge
- Lewis v Daily Telgraph Ltd – P seen to enter premises at a particular
address
> (Reverend X enters 10 Smith Street. This place is a brothel)
-only an example> Innocent on face, but capable of bearing a defamatory
meaning to those who know the premises are a brothel
- See also Cassidy v Daily Mirror – P’s husband said to be engaged to a third
party
> Imputed to those who knew P and knew she claimed to be
married that she was immorally cohabiting with a man
- Irrelevant that D did not intend to harm P, but made the statement innocently
- Form of strict liability
- P must show that the material was published to at least one person with that
extrinsic information
Apology mitigates damages – also ask questions of where the apology was, who would
have seen it, was it a reserved apology etc.
b) ID whether those imputations are in fact defamatory
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Would they in fact lower the plaintiff’s reputation in the eyes of the reasonable person?
Imputations are not necessarily always defamatory
Determined by the jury (if there is one, which there usually is)
The material must lower P’s reputation (personal or business) in the eyes of the ordinary
reasonable person - Sims v Stretch (1936)
Standard is that of the ‘hypothetical referee’ – taken to represent a single community standard
" Due to diversity of beliefs and attitudes, standard sometimes said to be that of an
‘appreciable and reputable section’ of the community – Hepburn v TCN Channel 9
" But, most Australian authorities still refer to a single, hypothetical standard
Clear that material not defamatory if only a small, prejudicial, anti-social minority would think
less of P
" Byrne v Dean (1937) – imputation that P a police informant – lowered his reputation in
the criminal world, but the ordinary person in the street would complement P for doing the
right thing, therefore not defamatory
Essence of defamation is that it disparages or discredits P’s personal, professional or business
reputation,
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Examples::
P committed a crime – Mirror Newspapers Ltd v Harrison
" P associated with known criminals or underworld figures – Versace v Monte (2002)
" P is a hypocrite – Thorley v Lord Kerry
" P is dishonest and/or a liar
" P is treacherous and/or disloyal – Murphy v Plasterers Society
" P is an alcoholic or drug addict – Alexander v Jenkins
" P is not of an appropriate character to hold a public office – Hawke v Tamworth
Newspapers
" P is incompetent and not qualified to hold a particular job – Baric v Doherty
Community views change over time
" Eg, probably no longer defamatory to say:
- P born out of wedlock
- P had a child out of wedlock
> cf imputation that P has children merely to claim social service
benefits?
- P is a homosexual (gay) > cf added suggestion that P was straight pretending to be gay, tf a
hypocrite (Jason Donovan case) or was a paedophile
> Isn’t defamatory to suggest someone is homosexual
> Something more derogative is defamatory, i.e. homosexuality +
paedophilia (John Marsden sued when this was alleged against
him) because this imputes predatory behaviour/abuse of trust
> Jason Donovan – newspaper said that he was straight but
pretended to be gay. Imputed hypocrisy. Was successful in suing
for defamation
> Needs to be something more than the imputation of
homosexuality
- P is ‘living in sin’
- P had pre-marital or extra marital sex
> This can still be defamatory
> Premarital sex – dependant on whether the subject is a man or
woman? (in the past, yes)
> cf added suggestion that P was sexually promiscuous or used
sex in manipulative way – Random House Australia Ltd v Abbott
& Costello – Liberal Ministers (and their wives) sued because
they suggested that they had both had sex with the same woman
in university and that she had convinced them to swap to the
Liberal Party. They were partly successful. Suggestion was that
(the wives) used it in a manipulative way.
> Needs to be false otherwise defence of truth applies
> Extra marital affair is more defamatory than pre-marital sex
> Cairns and Moroosey (politics), said they were having an affair,
they were both married to other people at the time. They sued for
defamation and weren’t successful because it was considered to
be to their credit
> Defamatory to suggest promiscuity
> NB. These decisions are made by juries, therefore there is no
precedent
Material must disparage P by imputing characteristics or behaviour for which P is responsible, eg
re P’s honesty or integrity
P not defamed by a statement about her personal characteristics, gender, or ethnic background
because no blame can be attributed to P for these things, eg P is:
" Overweight (unless suggests lack of discipline)
" Ill (unless suggests a hypochondriac or malingerer)
" A ‘wog’ or an ‘Arab’
" P innocent victim of crime
" A surgeon has Parkinson’s (case on this point)
Exceptional cases where disparagement is not required (see Watterson article pp 8-13):
a) The imputation casts P in a ‘ridiculous light’ –
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i.e. imputation exposes P to scorn, derision or ridicule by making P look
absurd or foolish
- Boyd v Mirror Newspapers – P (footballer) ‘slow, fat and predictable’ and
‘waddled’ onto field. Portrayed P in ridiculous light: not dependent on
imputation that he was at fault or to blame for condition
- Ettingshausen v ACP – Both disparaging imputation (that E had let himself
be photographed in nude) and ridiculous light imputation
- Berkoff v Burchill – Imputation that P (an actor) was ‘hideously ugly’
defamatory as exposed him to ridicule. This may have impacted on this
business impact, therefore there may be slightly different rules in dealing with
this now.
b) The imputation will cause people to ‘shun or avoid’ P
- Insanity
- Rape
- Infectious disease
- Rationale: these imputations can lead to a degree of social exclusion
because of people’s irrational prejudices
Business reputations
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Traditional view at common law: statements which merely injure P in her business or
profession are not defamatory unless they suggest behaviour or an event for which P is
responsible – Dawson Bloodstock Agency v Mirror Newspaper – said that a horse stud farm was
infected by a virus. Not defamatory because there was no suggestion that they introduced the
virus, they were the innocent victims of the virus
But see now John Fairfax Publications Pty Ltd v Gacic (2007) - sufficient that statements lower
P’s business reputation, even if no imputation of ‘responsibility’
Better view: statements that merely injure P in business not actionable (eg a statement that P’s
business is no longer trading) – Hall-Gibbs Mercantile Agency v Dun – must lower P’s business
reputation.
May defame someone’s business position even if they are not at fault (different to the
common law position)
At the very least there must be a lowering of the businesses reputation
Statements injuring P’s business reputation might alternatively be actionable as an injurious
falsehood (statements that damage the business but don’t necessarily injury their reputation) –
this is an alternative to defamation.
HC has said that the central question – Is the business reputation lowered?
Gatchich case (above proposition) ! but court was only considering whether a claim had been
made, didn’t consider any defences, therefore they may allow relief
Step 2: Identifying the plaintiff
Who can sue?
• Matter is only defamatory when it concerns the plaintiff
• How may the plaintiff be identified?
o Where the plaintiff is not identified by name, the question is whether a reasonable person would
believe the matter to refer to the plaintiff
o Hulton & Co. v Jones (1910) – a fictional story referred to a fictional character called Artemus
Jones. A solicitor by the same name sued for defamation. Held that just because the defendant
did not know the plaintiff was not enough, as a person reading the material would reasonably
think the article referred to the plaintiff.
o Lee v Wilson & Anor (1934) – an article claiming Officer Lee was corrupt (of the motor registration
branch) defamed to other Officer Lee’s which worked in the Police Force.
• Summary
o Irrelevant if the publisher did no intend to defame – if the reasonable person would think less of
the plaintiff, then its defamatory
o The test is whether the reasonable reader would read it as such
o The test is an objective one
o Where the plaintiff is not named, must prove that the reasonable person would conclude it was
them
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Who may bring an action?
Living persons
o Only a living plaintiff can commence an action
o A dead person cannon commence an action (section 10)
o An action commenced before a person dies will not survive their death
o If statements defame a dead person as well as a living one, then an action lies for the living
person
o Krahe v TCN Channel Nine Pty Ltd (1986) – article claiming that the deceased was an adulterer
meant the widow could sue because the imputation was that he could not retain her affection
A member of a group who has been defamed
o Actions cannot be bought by a group without a legal entity
o Individuals within a group who are defamed directly can bring actions
o If the group is so small that the defamatory material could relate to them individually, then they
can sue
o David Syme & Co v Lloyd (1984) – discussion of a cricket team as being corrupt was so small
that they could sue for the statements published.
A trading corporation
o At common law, corporations as legal entities could sue in defamation
o Section 9 of the UDL restricts this to:
o Non-profit organisations
o Those will less than 10 employees
o Those not related to other corporations (franchises)
o Individuals within a corporation can still sue provided their reputation has been disparaged
Local councils
o Council of the Shire of Ballina v Ringland (1994) – statements that a local council was dumping
sewerage into the sea at night was not actionable, because the law of defamation was not there
to protect elected bodies
o Section 9 provides public bodies cannot sue in defamation
Step 3: Publication
Who is liable?
What amounts to publication?
• Publication = communication
• Sadgrave v Hole (1901) – dictating a defamatory letter to ones secretary is publication
• Communication to ones spouse is not communication because of absolute privilege
• Defamatory gestures or pictures can suffice
• Gregory v Duke of Brunswick (1843) – hissing at performers on stage was defamatory
• Liability can also arise where the defendant didn’t intend to publish the matter, but should have
anticipated publication would occur
• Sims v Wran (1984) – the NSW Premier made certain defamatory statements to the plaintiff journalist
during a press conference which imputed that the plaintiff was not objective and was affected by personal
malice. These comments were subsequently widely broadcast throughout Australia on radio and
television and in the press. One of the issues before the court was whether Wran was liable for the
subsequent broadcasts and republications of his statement.
He was found to be liable as he should have anticipated that the republication would take place, given the
comments were made during a press conference attended by numerous other members of the media
Publication of legal innuendos
• Must establish publication of the imputation arising from the meaning of the words
Republication
• Those who repeat of ‘republish’ defamatory material are still liable
• There may be an available defence or statutory immunity to relieve the defendant
• Lewis v Daily Telegraph (1964) – a hearsay comment is just as defamatory as the original
• Wake v John Fairfax Ltd (1973) – a report quoted a racing steward was considered liable
• The original defamer will be liable for authorised re-publication or where it ought to have been foreseen
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Which jurisdiction to bring a suit?
• Common law: a cause of action existed in each state and territory where the defamatory matter was
published
• Gutnick v Dow Jones & Co (2002) - regarding internet publications and defamation.
Argument was put forward that the place of publication of defamatory material is where the material is
placed on a web server (in this case in New Jersey). Furthermore, it was stated that there should be one
single law governing the conduct of a person who chooses to make material available on the internet so
that publishers can be certain in predicting the law that will govern their conduct.
Their Honours pointed out that a reputation can only be harmed if the defamatory material is published in
a comprehensible form, and accordingly the tort of defamation occurs at the place where the material is
published in a comprehensible form, as that is where the harm occurs
In the case of material on the internet, it is not available in a comprehensible form until downloaded onto
a computer using a web browser. It is in the place where the material is downloaded that the publication
occurs and that the damage to reputation is done. On these facts, the material regarding Gutnick was
downloaded in Victoria, and thus the tort was committed in Victoria
The Court recognised the fact that the consequence of its decision was that a plaintiff could potentially
commence actions in multiple jurisdictions around the world (i.e. in any jurisdiction in which the material
was downloaded). However, it suggested that separate proceedings in a number of jurisdictions could
amount to an abuse of process and could be dealt with by applying well established principles to stay
proceedings
• Statue: no advantage in jurisdiction shopping because the same set of rules are applied
• Where the material was published overseas but litigated in Australia, the overseas laws apply
The defence of innocent dissemination – s 32
• Mechanical distributors can escape liability is the prove they did not know of the defamatory material they
were disseminating
• This covers booksellers, newsagents etc.
• Thomas v Australian Capital Television Pty Ltd (1996) – this defence will not protect radio or television
stations, as they are the main publishers of the material they broadcast
• However, s 32(e), where the broadcast is live, and they were merely a subordinate, they will not be held
liable, e.g. audience member yells something out etc.
• The defence applies where the defendant can prove:
o They published the material in the capacity of a subordinate distributor
o They did not know, or ought to have reasonably known, that the matter contained reasonable
imputations
o Was not negligent in failing to know the material contained defamatory imputations
Cyberlibel
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ISP’s (internet service providers) will be liable unless they can prove the defence of innocent
dissemination
ISP’s which merely host a website will not be liable (if the defence is proven)
Linked to the innocent dissemination defence (above) ! contained in the same section
Section 32(3)(g) – where an ISP has no effective control over what has occurred in the giving of its
services, it will not be liable
More broadly, section 32 and 33 seek to protect ISP’s
Damage to the plaintiff’s reputation
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The onus is on the defendant to prove there was no damage or minimal damage to the plaintiff’s
reputation
A defendant will not escape liability by claiming the plaintiff’s reputation was already tarnished
This may mitigate damages only
Chappell v Mirror Newspapers Ltd (1984) – Plaintiff (captain of the Aust. Cricket team) sued in
defamation for statements alleging he was a bad sportsman. Held that this already tarnished reputation
would act to mitigate damages.
A person who has a tarnished reputation already will not necessarily be less defamed than someone who
has a unblemished reputation
Only evidence as to general reputation is admissible – rumours are inadmissible and so is evidence as to
character (reputation is in issue, not character)
Prior criminal convictions are, however, admissible
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Associated tort – injurious falsehood
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Provides relief against a person whose false statements cause another to act in a detrimental way
towards the plaintiff
The matters of proof are stringent
Very similar to s 52 of the TPA (hand-in-hand)
Ratcliffe v Evans (1892) – the defendant published an article that the plaintiff’s business no longer existed.
Damages were awarded for loss to the plaintiff’s businesses goodwill.
Elements of the tort of injurious falsehood
There are three prerequisites
1. A false statement about the plaintiff’s goods, property or business, made to a third
person
2. A malicious state of mind in the defendant
3. Actual loss suffered by the plaintiff as a result of the published statement
Step 1: A false statement made to a third party
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The statement must be untrue/false
A “puff” is not actionable, even if it is false
Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd (1899) – the defendant advertised that his paint
was better than the plaintiffs, although more or less the same (the plaintiff’s paint was more expensive).
Held that the claims were intended to be taken seriously, therefore they were not puffs.
T J Larkins & Sons v Chelmer Holdings Pty Ltd & Anor (1965) – held that a failure of an architect to certify
the completion of a building was misleading and deceptive and also injurious falsehood
The onus is on the plaintiff to prove the statement is false
The statement must be communicated to a third party (like defamation, but unlike deceit)
Step 2: Published with malice
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Publication is not indicative of malice
Malice – not a personal grudge, but an intention to publish something with a calculation to cause harm to
the plaintiff with a dishonest motive
Negligent publication is not actionable
Step 3: Causing economic loss to the plaintiff
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Need proof of actual damage ($$)
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SUMMARY
When approaching a defamation question go through the following steps.
1) Was the material defamatory?
• Is the material such that, considered as a whole and in all the circumstances, the ordinary
reasonable person would derive the defamatory meaning from the statement; Boyd v Mirror
Newspapers. In other words, would the ordinary person even be aware of the material? P
must show that a reputable and appreciable group of the community would have been aware
of the material.
$ If P claims a legal innuendo then one must look to whether the material was
published to at least one person with the relevant extrinsic knowledge; Morrison v
Ritchie.
• Having determined that the community was aware of the material, one must determine
whether or not the material is factually defamatory; Parmiter v Coupland.
$ Was the material such that it would expose P to ‘hatred, contempt
and ridicule’ (Parmiter v Coupland).
$ Was it such that ‘right-thinking members of society’ would think less
of P (Sim v Stretch), or
$ was it such that it would lead to P being ‘shunned and avoided’
(Youssupoff v Metro-Goldwyn-Mayer). ANY ONE OF THESE IS
SUFFICIENT.
Note that the material must infer some degree of moral blameworthiness on P, unless you are relying on the
‘ridicule’ or ‘shun and avoid’ tests (neither of which impute any moral blameworthiness); Sungravure v
Middle East Airlines.
2) Did the material refer to P?
• The statement must be such that the objective, reasonable person (invested with extrinsic
material if this is relevant; i.e. legal innuendo) would be aware that the material referred to P.
There need not be any intention to refer to P. What matters is the actual operation of the
words; Hulton v Jones.
• Living individuals, subject to s9 limitations- corporations (commercial reputations only) and
groups (if individuals can be identified) can sue.
3) The material must have been published to a third party
• All parties who take part in the publication will be liable; McCauley v John Fairfax.
• Unintentional publication may absolve D of liability. However they must show that they were
not negligent or that it was unforeseeable that the material would eventually be published to
the public.
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