LAWS11064 Torts B
Module 9 – Defamation
Objectives
At the end of this module you should be able to:
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Understand the elements of defamation;
Assess the extent to which defamation law protects privacy;
Apply the elements of defamation to particular fact scenarios;
Understand the defences relating to defamation; and
Apply the defences to particular fact scenarios.
This week:
Part 1
Part 2
• Elements of Defamation
• Defamatory matter
• Referable to the Pl
• Publication
• Defences under Common Law
and Statute
• Remedies
Defamation flowchart:
Statement
Offer to make amends
Accepted by Pl – matter ends
Offer to make amends rejected by Pl or not made
by publisher
No
Step 1: Is the material defamatory?
Pl fails
Yes
Step 2: Does the statement refer to or
identify the Pl?
No
Pl fails
Yes
Step 3: Was the statement published?
No
Pl fails
Yes
Step 4: Does the Def have any defences?
Yes
Defendant wins case or damages are
reduced
No
Pl wins.
Awarded damages and/or
injunction
1. Is the matter defamatory?
‘a publication, without justification or lawful excuse,
exposing a person to hatred, contempt or ridicule,
calculated to injure that person’s reputation’ (Random
House Aus P/L v Abbott (1999) 167 ALR 224).
Lowers the
Pl in the
estimation
of others
Exposes Pl
to hatred,
ridicule or
contempt
Causes Pl
to be
shunned or
avoided
Defamatory matter cont.
Lowers the Pl in the estimation of others
 if a publication causes the reasonable person to think less
of the Pl: Reader’s Digest Services v Lamb (1982) 150
CLR 500.
 injured feelings or pride not enough: Boyd v Mirror
Newspapers Ltd [1980] 2 NSWLR 449.
 Must disparage (or impute blame) to Pl: eg. John Fairfax &
Sons Ltd v Punch (1980) 31 ALR 624 (that political leader
had lost confidence of party held to be defamatory). cf.
Sungravure P/L v Middle East Airlines Airliban SAL (1975)
134 CLR 1 (no defamation to state airline was target of
terrorist attacks). See Boyd (above).
Defamatory matter cont.
• Exposes Pl to hatred, ridicule or
contempt:
 Ettinghausen v Australian Consolidated
Press (1991) 23 NSWLR 443
 Berkoff v Burchill [1996] 4 All ER 1008
(actor described as ‘hideously ugly’,
held defamatory)
 Saying Pl is homosexual? Clearly
defamatory previously, and possibly
today if the Pl is in heterosexual
marriage (see Cruise v Express
Newspapers plc [1999] QB 931). See
also, Anti-Discrimination Act 1991 (Qld)
which makes it unlawful to publish
matter inciting hatred, contempt or
ridicule on grounds of race, sexual
orientation, sexuality or transgender
status.
Image source: Cory Doctorow (flickr)
• Causes Pl to be shunned or
avoided:
 Youssoupoff v MetroGoldwyn-Mayer Picture
Ltd (1934) 50 TLR 581
(held that is was
defamatory to suggest
that Pl had been raped).
 Monson v Tussaud’s
[1894] 1 QB 671 (Def
defamed Pl by including
near murderer’s gallery).
Hypothetical Referee
“… whether the alleged libel is established depends on the hypothetical
referees who are taken to have a uniform view of the meaning of the
language used and upon the standards, moral or social, by which they
evaluate the imputation they understand to have been made. They are
taken to share a moral or social standard by which to judge the
defamatory character of that imputation being a standard common to
society generally” (per Brennan J Reader’s Digest Services v Lamb (1982)
150 CLR 500 at 506)
Farquhar v Bottom [1980] 2 NSWLR
380: ‘the ordinary reasonable
reader is a person of fair average
intelligence, who is neither
perverse, nor morbid or suspicious
of mind, nor avid for scandal’
See criticism from Kirby J in Favell v
Qld Newspapers (2005) 221 ALR 186
Pleading defamatory meaning
Natural & Ordinary
Meaning
• may therefore include any
implication or inference which a
reasonable reader, guided not
by any special but only by
general knowledge … would
draw from the words” (Jones v
Skelton [1963] 3 All ER 952).
• Any strained, or forced, or
utterly unreasonable
interpretation of words must be
rejected: Jones v Skelton; Favell
v Qld Newspapers (2005) 221
ALR 186. But Lord Devlin noted
in Lewis v Daily Telegraph
[1964] AC 234, ‘ordinary
readers draw implications much
more freely, especially when
they are derogatory’ (at 11).
Implied Meaning
• False (popular) innuendo
•secondary meaning that is implied by
reading between the lines (eg. Fraud
squad is investigating)
•statement that Pl under investigation
does not imply guilt: Lewis v Daily
Telegraph [1964] AC 234.
• True Innuendo
•alleged meaning arises from the natural
and ordinary meaning of the words
being read in light of other facts not
mentioned in the publication
•Cassidy v Daily Mirror Newspapers
[1929] 2 KB 321
•Special facts and knowledge must be
pleaded to support a true innuendo:
Youssoupoff v MGM (1934) 50 TLR 581
•Only one cause of action arises:
Composite Buyers v Clarke [1988] 2 Qd R
602
2. Reference to Pl
• If Pl named, there is sufficient identification
• Innocently using fictitious name may be defamatory to person
of same name if publication reasonably referable to them:
Hulton (E) & Co v Jones [1910] AC 25.
• Same if Def intends to refer to different person to Pl: Lee v
Wilson (1934) 51 CLR 276; Hall v Qld Newspapers [2002] 1
Qd R 376
• Identification of Pl may also be by photograph or picture, or
may refer to them by their title – eg Prime Minister. See Henry
v TVW Enterprises Ltd [1990] WAR 475.
2. Reference to Pl: Defamation of Group
• Not actionable by individual members unless statement is capable
of referring to all individual members (Random House v Abbott &
Costello (1999) 167 ALR 224 or if reasonably referable to them
(Godhard v James Inglis & Co Ltd (1904) 2 CLR 78).
• Generally assumed statements about sizeable groups don’t defame
individual members as readers know it may not be true of everyone:
Knupffer v London Express Newspaper [1944] AC 116.
‘these blokes’ and
‘ministers’
reasonably referable
to particular
members of cabinet.
Bjelke-Peterson v
Warburton & Burns [1987]
2 Qd R 465
See also, Mann v Medicine
Group (1991) 105 FLR 419
(defamation of bulk-billing
doctors not referable to
individual members). Cf
Lloyd v David Syme & Co
[1986] AC 350 (article
reasonably referable to
captain of cricket team).
See Ballina Shire Council v
Ringland (1994) 33 NSWLR
680 (local council unable to
rely on defamation to stop
critics. Individual members
may sue if identifiable
damage to reputation).
Disclaimers
• disclaimers will be taken into account when determining
whether the publication is reasonably referable to the Pl
• If reasonable person would still believe the defamatory
material is referring to the Pl, then the Def will be held liable –
regardless of the disclaimer (see for eg. Australian
Broadcasting Corporation v Hanson [1998] QCA 306
3. Publication
Statement must be made to someone
other than Pl: Pullman v W Hill & Co Ltd
[1891] 1 QB 524. Statement to Def’s
spouse is not published, but one to Pl’s
spouse is: Wennhak v Morgan (1888) 20
QBD 635.
Internet: material on web,
emails, bulletin boards/forums
included. Dow Jones & Co v
Gutnick (2002) 210 CLR 575
(publication when downloaded
material becomes
comprehensible).
Each time statement repeated
(including by other persons) =
new publication. Original Def
liable if foreseeable. Repeater
may also be liable.
If letter to Pl opened by someone else,
published if reasonably foreseeable that
someone else would read. Huth v Huth
[1915] 3 KB 32 (not foreseeable that
butler would open letter); contrast
Theaker v Richardson [1962] 1 WLR 151
(RF that Pl’s husband would read letter).
No publication if Pl is company and
third party is employee in course of
ordinary business: State Bank of
NSW v Currabubula Holdings (2001)
51 NSWLR 399.
Image source: nicubunu (openclipart)
Dead Pl’s and Limitation Periods
Can a dead person
be defamed?
Generally, no.
Section 10 of the Act provides:
A person (including a personal representative
of a deceased person) can’t assert, continue or
enforce a cause of action for defamation in
relation to –
(a) the publication of defamatory matter
about a deceased person (whether published
before or after his or her death); or
(b) the publication of defamatory matter
by a person who has died since publishing the
matter.
Limitation period:
 if published after Jan 2006,
1yr period from date of
publication applies (section
10AA Limitation of Actions
Act 1974).
 May be extended to 3 yrs if
court satisfied that action
could not reasonably be
commenced within 1yr.
Part 2: Defences to Defamation
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Justification – s 25 Defamation Act
Contextual Truth – s 26
Absolute Privilege – s 27
Publication of Public Documents – s 28
Fair reports of proceedings of public concern – s 29
Qualified privilege – s 30
Honest opinion – s 31
Innocent dissemination – s 32
Triviality – s 33
Offer to make amends – Pt 3, Div 1
Defences: Justification
s. 25: ‘It is a defence to the publication of defamatory matter if the
Def proves that the defamatory imputations carried by the matter of
which the Pl complains are substantially true’.
Justification
A complete defence at common law: Crowley v Glissan (No 2) (1905) 2
CLR 744. “True in substance” (each and every statement of fact must be
accurate); “true in effect” (reasonable person should not be able to draw
any inference from the matter that is not true).
Defences: Contextual Truth
s. 26 Defamation Act; common law.
Applies if:
in addition to the defamatory
imputations, the matter
contained one or more other
imputations that are
substantially true (the
contextual imputations); and
because of the substantial truth
of the contextual imputations,
the plaintiff’s reputation was not
further harmed by the
defamatory imputations.
Eg of defence found
in: John Fairfax
Publications v
Zunter [2006]
NSWCA 227.
Defences: Absolute Privilege
s. 27 Defamation
Act and common
Judicial proceedings and
law. Applies:
their reports. Required
for administration of
justice (Cabassi v Vila
(1940))
Statements made during
sittings in Parliament, in
parliamentary papers,
and in government or
statutory inquiries
Communications
between officers of state
in course of official
duties privileged at
common law: Chatterton
v Secretary of State for
India [1895] 2 QB 189.
Allows people
to say exactly
what they like
without fear of
legal
proceedings
Applies to judges,
parties to the
action, witnesses,
legal practitioners
and jurors. At
common law, also
applies to
proceedings of
quasi-judicial
bodies.
Communications
between spouses
protected at common
law (Wennhak v Morgan
(1888) 20 QBD 635)
Defences: Public Documents and Public
Proceedings
Public documents – s. 28
Defamation Act
• material in dispute was
contained in a public document,
or a fair copy, summary or
extract from a public document
• includes, but is not limited to,
reports by a parliamentary body,
a judgment by a court,
government documents and
records open to the public
Fair report of
proceedings of public
concern – s 29
• If the matter was, or was
contained in, a fair report
of any proceedings of
public concern.
• ‘proceedings of public
concern’ defined in s. 29
• Defence lost if Pl proves it
was not published
honestly and for the
information of the public
or advancement of
education (s. 29(3)).
Defences: Qualified Privilege
s. 30:
- if recipient has interest or apparent interest in
having info on some subject, and
-is published in the course of giving that
information, and
- the Def’s conduct was reasonable.
Categories of qualified
privilege are not closed:
Herald & Weekly Times Ltd v
Popovic [2003] VSCA 161 at
[69].
At common law, common
theme is interest or duty
to publish the defamatory
material.
Defence lost if actuated by
ill will or improper motive.
a
complete
defence
Chetwynd v Armidale
Dumaresq Council [2010]
NSWSC 690: ‘statutory
qualified privilege is not
subject to the
requirement of reciprocity
which applies to common
law qualified privilege. The
statutory defence is
subject to the
requirement that the
recipient of the
publication have an
interest or apparent
interest in having
information on the
subject’.
Defences: Honest opinion
s. 31 and at common
law
aka “fair comment”
Comment not ‘honest’ if
Def motivated by malice
(Comalco Ltd v ABC
(1985))
Requires:
• Expression of opinion of
Def
• Not a statement of fact
• Related to matter of public
interest and
• Based on proper material
Opinion must be ‘fair’
(O’Shaughnessy v Mirror
Newspapers (1970)
If opinion also contains statements of
fact, facts as expressed must be true and
correct: ABC v Comalco Ltd (1986) 68 ALR
259
Defences: Innocent dissemination
s. 32 and
common law:
at common law: if publisher did not know
publication contained defamatory matter,
through no negligence of their own:
McPhersons Ltd v Hickie (1995)
Booksellers,
newsagents, librarians
etc
Statute: applies to
“subordinate
distributor”, defined in
s. 32(2)
Applies to broadcasters of live programs in specific
circumstances: see for eg. Thompson v Australian
Capital Television (1996) 186 CLR 574 (broadcaster
had control over relaying current affairs program
produced by another station, so no defence)
Defences: Triviality; Offer to make amends
Triviality – s. 33 and
common law
• if the Def proves that the
circumstances of
publication were such that
the Pl was unlikely to
sustain any harm
Offer to make amends –
Part 3, Div 1 of Act
• Def may offer to make
amends to prevent further
legal proceedings from taking
place
• Specific rules apply to form
and content of offer.
• If accepted, Pl cannot
maintain an action (s. 17).
• If not accepted, Def can raise
this as defence.
Remedies
Interlocutory injunction
– sought prior to trial to
prevent publication until
action heard. Very rare.
No injunction will be
granted if it is a matter
of public interest, unless
it would be contempt of
Ct (Church of Scientology
of California v Reader’s
Digest services)
Only granted in very
clear cases
Injunction
Remedies
Non-Economic: capped under s. 35;
Evidence of the Pl’s reputation may be
taken into consideration (Chappell v
Mirror Newspapers Ltd (1984) Aust
Torts Reps 80-691). Eg in O’Hagan v
Nationwide News P/L (2001) 53 NSWLR
89
No clear guidelines on
assessment
Court must ‘ensure there
is an appropriate and
rational relationship
between the harm
sustained by the Pl and
the amount of damages
awarded’ (s. 34)
Economic: any financial loss actually
suffered as result.
Damages
Aggravated damages may
be awarded (s. 35(2)).
Exemplary damages
prohibited: s. 37
Malice irrelevant except
to extent that it affects
harm sustained by the Pl
(s. 36).
Review
In this module you have learned to:
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Understand the elements of defamation;
Assess the extent to which defamation law protects privacy;
Apply the elements of defamation to particular fact scenarios;
Understand the defences relating to defamation; and
Apply the defences to particular fact scenarios.
Acknowledgements – References
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Danuta Mendelson, The New Law of Torts (2nd ed 2010), published by Oxford
University Press.
Rosalie Balkin and Jim Davis, Law of Torts (4th ed, 2009) published by LexisNexis
Butterworths.
Julia Davis, Connecting with Tort Law (2012) published by Oxford University Press.
Bernadette Richards, Karinne Ludlow and Andy Gibson, Tort Law in Principle (5th ed,
2009) published by Thomson Reuters Lawbook Co.
Frances McGlone and Amanda Stickley, Australian Torts Law (2nd ed 2009)
published by LexisNexis Butterworths.
Martin Davies and Ian Malkin, Torts (Focus Series, 6th ed, 2012) published by
LexisNexis Butterworths.
Carolyn Sappideen, Prue Vines, Helen Grant and Penelope Watson, Torts
Commentary and Materials (10th ed, 2009) published by Thomson Reuters Lawbook
Co.
Sarah Withnall Howe, Greg Walsh and Patrick Rooney, Torts (LexisNexis Study
Guide, 2nd ed, 2012) published by LexisNexis Butterworths.