Torts
Week 9 - Defamation
Frances McGlone
room 708
3864 1094
f.mcglone@qut.edu.au
Topics
 Week 9
– introduction
– elements of the cause of action
 Weeks 10 & 11
– defences
– remedies
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Introduction
 What interests are protected by defamation law?
 What are the sources of defamation law?
– position in Queensland
• Defamation Act 1889 - commence June 1995
– other Australian jurisdictions
 What is defamation?
– three elements
• defamatory matter
• reference to the plaintiff
• publication
– no defences available to defendant
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Libel and Slander
 Common Law
– two separate torts
• libel
– defamation in permanent form
• slander
– defamation in transient form
• radio broadcasts?
– Church of Scientology v Anderson
• motion pictures?
– Youssoupoff v Metro-Goldwyn-Mayer
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Why distinguish between libel
and slander?
 Libel
– actionable per se
 Slander
– generally requires special damage
– exceptions
•
•
•
•
imputation of crime punishable by imprisonment
disparaging person in office, profession, trade etc
allegation of infectious or contagious disease
imputation of unchastity in women (created by
statute)
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Libel and Slander
 In Queensland
– no distinction
• section 5(1) Defamation Act includes both
permanent and transitory forms of communication
– Any person who by spoken words or audible sounds, or
by words intended to be read either by sight or touch, or
by signs, signals, gestures or visible representations,
publishes any defamatory imputation concerning any
person is said to defame that person.
– defamation actionable per se
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Elements of Defamation
(Queensland and the Common Law)
A defamatory matter/statement
 Reference to the plaintiff
 Publication
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1. Defamatory Matter
 Common Law
– matter “of a kind likely to lead ordinary decent folk to
think less of the person about whom it is made”
• Boyd v Mirror Newspapers [1980] 2 NSWLR 449 at 452
 Queensland
– section 4 Defamation Act: Likelihood of
• injury to reputation OR
• injury to plaintiff’s profession or trade OR
• other persons induced to shun or avoid or ridicule or despise
the plaintiff
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Standard - objective test
Common Law and Queensland
 Judged by standard of “hypothetical referee”
– variously described as
• reasonable men (women)
• right thinking members of society
• ordinary men(women) not avid for scandal
– knowledge of additional facts and circumstances
• Youssoupoff v MGM
 not sufficient to show discredit before a restricted
class
• Byrne v Deane
• Compare: Krahe v TCN Channel Nine
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Protection of personal and business
reputation
 Common law
– attack on business must be attack on plaintiff’s
reputation
• Fairfax v Punch (1980) 31 ALR 624
• Boyd v Mirror Newspapers [1980] 2 NSWLR 449
 Queensland
– section 4 Defamation Act includes:
• likely injury to the plaintiff’s profession or trade
– extends to virtually any legitimate calling
• Queensland Newspapers v Baker
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Interpreting Defamatory Matter
 Common Law
– natural and ordinary meaning
– innuendo
• false innuendo
• true innuendo
 Queensland
– section 4 Defamation Act
• imputation may be expressed either directly or by
insinuation or irony
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Role of Judge and Jury
 Common law
– Judge:
• is the statement capable of bearing the defamatory
meaning alleged
– Jury:
• did the statement actually have that defamatory
meaning
 Queensland
– section 18 Defamation Act
• same as common law
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Elements of Defamation
(Queensland and the Common Law)
 A defamatory matter/statement
Reference to the plaintiff
 Publication
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2. Reference to the Plaintiff
 Common law and Queensland
– Material must be reasonably referable to the
plaintiff
– Test:
• would a reasonable person having knowledge of the
relevant circumstances understand that the material
referred to the plaintiff
– Hulton v Jones
– Question of fact for jury
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Who may be defamed?
 Common law and Queensland
– Any living person
• reputation of living plaintiff may be injured by
defamation of deceased person
• action does not survive death of plaintiff or
defendant
– Corporations
• not unincorporated associations
• not organs of Government
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Identification of the plaintiff
 Need not be by name
 May come from knowledge of extrinsic
facts
 Intention of the defendant not relevant
 May be named in other publications
– subsequent publication by defendant
– earlier publication by third party
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Defamation of a Group
 Class as a whole will never have right of
action
 Members of class defamed may have action
subject to:
– size of the class
– generality of the charge made
• see eg Bjelke-Petersen v Warburton
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Elements of Defamation
(Queensland and the Common Law)
 A defamatory matter/statement
 Reference to the plaintiff
 Publication
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3. Publication - Common Law
 The defamatory matter must be made
known to at least one person other than the
plaintiff
 What constitutes publication?
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Queensland
 Section 5(1)
– a person who publishes defamatory matter
concerning any person is said to defame that
person
 Section 5(2)
– definition of publication
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Injurious Falsehood
 Common law
– protects economic interests
– actionable only if can prove pecuniary loss
– Ratcliffe v Evans:
• requirements of the tort
–
–
–
–
–
false statement of and concerning goods
publication by defendant to third party
malice on part of defendant
calculated to cause damage (objective test applied)
proof of particular loss as a result of the statement
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Queensland
 Included in defamation action
– section 4 Defamation Act:
• defamatory matter includes any imputation
concerning any person…by which the person is
likely to be injured in the persons profession or trade
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Benefits of action in defamation over
action for injurious falsehood
 Plaintiff does not have to prove special
damage
– Hall-Gibbs Mercantile Agency Ltd v Dunn
(1910) 12 CLR 84
 Plaintiff does not have to show that the
statement was false
 Plaintiff does not have to show defendant
motivated by malice
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Summary
Defamation in Qld
A defamatory matter/statement
Reference to the plaintiff
Publication
Defamation at common law
plus injurious Falsehood
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Thank you!
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