Published on 24/06/2007

Defamation and Freedom of Speech

The rationale and role of defamation law: balancing protection of reputation and freedom of speech:

“The purpose of the law of defamation is to strike a balance between the right to reputation and freedom of speech”: Lange v ABC (1997) 189 CLR 520 at 568

This case introduced a notion of reasonableness

“Both interests are highly valued in our society, the one as perhaps the most dearly prized attribute of civilised man, the other the very foundation of a democratic society”: Fleming, The Law of Torts, 9th ed, 1998, p580

•   The law substantively regulates the ways journalists write their stories
•   Arguably, defamation law is not only about freedom of speech and reputation, but also about quality control
•   The implied freedom of political communication in Australia is not a ‘sword’ that can be used against the state. Rather it is a limitation against the legislature. They cannot legislate against things that are inconsistent with the implied freedom of political communication

How does defamation law vary with other jurisdictions?

•   In the US, defamation law is highly constitutionalised by the First Amendment
•   In some states, defamation has been entirely codified under statute
•   Whilst in other states, it is primarily governed by case law (common law)

Defamation law in NSW

•   In NSW, defamation is governed by both Common Law and Statute
o   Defamation Act 1974 (NSW)
– The DA codifies the defences of truth/justification (see s 15)
– and comment (s 29).
– All matters of law and fact regarding defences and damages are a matter for the judge (s7A(4)).

The Contingent and Variable Nature of Defamation Law
Concepts of “reputation”

“…defamation law presupposes an image of how people are tied together, or should be tied together, in a social setting. As this image varies, so will the nature of the reputation that the law of defamation seeks to protect. This suggests that an evaluation of the state’s interest in reputation can have no single outcome, for the meaning and significance of reputation will depend upon the kinds of social relationships that defamation law is designed to uphold”. (Post, (1986) 74 California Law Review 691, at 693)

▪ Lange (p 564): “Under a legal system based on the common law, “everybody is free to do anything, subject only to the provisions of the law”, so that one proceeds “upon an assumption of freedom of speech” and turns to the law “to discover the established exceptions to it. The common law torts of libel and slander are such exceptions”.

•   Defamation law changes occasionally since what is regarded as defamatory changes from time to time. Generally, the balancing process between reputation and freedom of speech necessarily responds to a variety of factors that accompany change in any society.
•   In Lange (p832), HC quoted McHugh J in Stephens: the dependence of the ordinary Australian citizen upon the exercise of functions and powers vested in public representatives and officials within a vast, publicly funded bureaucracy, means citizens have an important interest in receiving information concerning the exercise of those functions and powers, and the performance of public officials.
•   Conversely (Tilbury p246), we also live in an era characterised by the rapid development of telecommunications facilitating rapid and widespread dissemination of defamatory material, and in a country where the concentration of media ownership is very high.

Concepts of “Freedom of Speech”

•   We have now introduced anti-vilification legislation – it disallows discriminatory behaviour, and makes vilification unlawful (racial, HIV aids, homosexual) on particular grounds. Thus, freedom of speech can get you in trouble on some grounds.
•   This legislation suppresses free speech to avoid hurt caused to others.
•   It may be that in the end, freedom of speech requires different rules in different aspects.
•   Mahoney J in Ballina Shire Council v Ringland (1994) 33 NSWLR attacks the idea of free speech at all times and all places is good in itself. He says:
“The D’s claim is to say what he or she wishes….Free speech is not…a good in itself. It is not in itself an end; it is a means to another or other ends. There is nothing inherently good or bad in free speech as such... The law favours free speech because of the good which is likely to be produced if citizens are entitled under the law to speak freely and because of the evil which is apt to arise if the right to speak freely is limited. If persons may speak freely, they may create great literature, increase the store of knowledge by the exchange of ideas, identify and criticise wrongs and check the abuse of power. Experience has shown that if citizens may not speak freely power is apt to be abused and democratic freedoms lost.”

Why is free speech a good thing?
•   We begin with the CL with an assumption of free speech, and then see if there is a reason why you should not be allowed to let that free speech come through
•   “Voyeurism”: Revenue for the publisher. If people will read it, they will put it in there. If people did not buy, would not have paparazzi etc.
•   Entertainment value!  The “My mother married my husband” magazine article
•   Free speech facilitates the discovery of truth, and truth is either an end in itself or contributes to the development of society
•   Suppressing free speech inhibits the development of one’s personality, intellectual and spiritual development. Free speech enables us to work our way through the “marketplace of ideas”, to develop intellectual maturity, to enjoy moral autonomy. Self-expression contributes to self-fulfillment.
•   Free speech facilitates citizens’ participation in democracy.
•   Free speech is a safety valve; a vent for the tensions of society

Recognition of freedom of speech within international instruments
The International Covenant on Civil and Political Rights

•   Article 19.2: Everyone shall have the right of freedom of expression; [including] freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice
•   Article 19.3: The exercise of the rights provided for in paragraph 2 (above) of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) for the protection of the rights and reputations of others…
•   Article 17.1: No one shall be subjected to arbitrary or unlawful interference with his privacy… nor to unlawful attack on his honour and reputation.

Recognition of freedom of speech within domestic constitutions and bills of rights

United States Constitution: First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The tort of defamation in context: Other actions protecting reputation and other over-lapping interests

Defamation is quite different from other torts.
The tort of defamation in context: Other actions (remedies) protecting reputation and other over-lapping interests
-   Injurious falsehood
-   Deceit
-   Conspiracy
-   Intimidation
-   Negligent misstatement
-   Liability under the Trade Practices Act
-   Privacy and breach of confidence

Versace v Monte [2002] FCA 190
FACTS: Action between Donatella and Santo, and a Private Investigator Monte. M wrote book “The Spying Game”, and Newspaper Magazine published bits of it. M claimed he was a confidant of Gianni during 1996 and that it was the Italian Mafia that killed him, not Andrew Cunanan. He claimed G told him “Johnny the Cat” stole 5 secret ledgers and was asking $5M for them back. He could not tell Police, because this would make public that he was involved in the underground world. He also claimed G told him the family was trying to cut off his money because they thought he had Aids.
The Versace claim was that Monte made false and misleading statements in claiming a commercial relationship with Gianni, who M claimed had retained him as a private investigator and advisor. (Also looks at defamation, but we don’t look at that aspect here)
Pleadings as against the Versace Company:
(a)   One or more of the Versace companies was criminally involved in the Mafia
(b)   One or more of the Versace companies had been laundering millions of “dirty money”
(c)   One or more of the Versace companies maintained secret ledgers that recorded dealings with the underworld.
(d)   One or more of the Versace companies was associated with mobster “Johnny the Cat”
(e)   One or more of the Versace companies was being blackmailed due to involvement in mob
(f)   One or more of the Versace companies had been infiltrated by organised crime
Pleadings as against Santo and Donatella:
•   They were criminally involved in the Italian underworld
•   They were criminally involved in laundering millions of ‘dirty’ dollars
•   Both were reasonably suspected of murdering G
•   Both involved in maintaining secret ledgers recording transactions with organised crime
•   Both reasonably suspected of murdering G to conceal their engagement in criminal activity
•   Both were being blackmailed by a mobster
Monte and the Newspaper denied the allegations. M claimed he was an “information provider” and thus had protection under legislation with respect to claims of misleading conduct.
ISSUE: Could Monte and Arkitude Holdings Pty Ltd bring themselves within the “prescribed information provider” exception in s 62A?
HELD: M’s statements lack credibility and the judge said he does not believe that he was ever in contact with G. He is not within the protection of the “information provider” defence regarding misleading and deceptive conduct. (Nor does he have any defence with respect to the claim of defamation). Injunctive relief was granted to restrain further publication
Judge notes the overlap between the tort of defamation, and the TPA. It is not a defence to a claim under the TPA or the FTA to argue that the field is already covered by the law of defamation. There is no reason why the Trade Practices or Fair Trading legislation should be read down to accommodate this body of common law.
Tamberlin J made some findings of fact regarding the alleged relationship between M and G:
•   TPA - s52(1): A corporation shall not…engage in conduct that is misleading or deceptive or is likely to mislead or deceive
•   FTA - s42: as above, but replace ‘corporation’ with ‘person’
•   TPA – s53: False or Misleading representations. A corporation shall not…
(bb) falsely represent that a particular person has agreed to acquire goods or services;
(c) represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have;
(d) represent that the corporation has a…affiliation it does not have
He said the evidence points to a finding against M having had a meeting with G.
Due to the handwriting experts’ evidence, Judge concluded the entry into the appointment book was false as evidence showed different ink written at a different time. With respect to the faxes, experts said he used the ‘stray’ fax, which he found, and changed it to make it look like it was not fabricated. Judge concluded M did not have any association with G and his conduct was misleading and deceptive within the meaning of the TPA and the FTA.
Section 65A of the TPA introduces the “prescribed information defence” (defence to s52 claims) – it exempts liability for “prescribed information providers” (s65(1)(v)). However the exemption does not apply, if advertising is involved.
The Second Reading Speech made no specific reference to authors or publications of books (fiction or non-fiction). It indicates s65A is intended to exempt media from actions brought under s52, “which would inhibit activities relating to the provision of news and other information…The exemption is not available, however, in respect of the provision of information where they have what might be regarded as a commercial interest in the content of the information”.
Judge did not accept M was an “information provider”, and M did not help his case by describing his book as a “fast moving fictional film”. Thus it could not be brought within s65A. Because the book had false and misleading representations, an injunction was imposed.

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Negligent misstatement and defamation: The “overlap issue”

•   How far should negligence go, before an opinion or careless statement affects reputation? What is the extent of the “duty of care”?
•   There is a very important defence of Qualified Privilege. This is the key defence used for false publications.
•   In the next two cases, the HC appears to have provided a some support for limiting the remedy available for negligence where it cuts across tort of defamation
•   There is however an argument that courts should not recognize a duty of care with respect to the publications of defamatory statements affecting character and reputation. A negligence remedy would undermine the present balance which defamation law seeks to strike between freedom of speech and reputation.

Sullivan v Moody; Thompson v Connon [2001] HCA 59
FACTS: The facts were similar to the facts in Thompson where at the instigation of the Department of Community Welfare, medical practitioners employed by a sexual assault referral centre examined the children of the P. The matter was referred to police and the P was charged with sexual offences, these were subsequently dropped. The P alleges that each of the first and second D’s (the medical practitioners at the Sexual Assault Referral Centre) "owed a duty of care to the P to carry out her duties…and in particular the examination and diagnoses of persons and in particular children suspected of having been sexually abused … with due care, skill, discretion and diligence." P alleges he suffered shock, distress, psychiatric injury, and consequential personal and financial loss.
HELD: Ds were under a statutory duty to investigate possible sexual offences against children that was inconsistent with a duty to the persons suspected of abusing the children. HC emphasises that “proximity” is not a helpful concept for delineating the limits of the duty of care and says no duty could be owed to the fathers of the children.
The statutory scheme required the respondents to treat the interests of the children as paramount. Their professional or statutory responsibilities involved investigating and reporting upon, allegations that the children had suffered, and were under threat of, serious harm. It would be inconsistent with the proper discharge of those responsibilities that they should be subjected to a legal duty, breach of which would sound in damages, to take care to protect persons who were suspected of being the sources of harm.
The duty for which the appellants contend cannot be reconciled with the nature of the functions being exercised, or with their statutory obligation to treat the interests of the children as paramount.
Even if there is only a suspicion of harm, the interests of the child would favour reporting that suspicion; whilst the interests of a person suspected of the abuse would be opposite.
HC notes that the harm suffered by the P’s (breakdown of their marriages due to being suspected of abusing the children) could be seen as arising from the communication of suspicions to third parties as much as from anything else.
This raises the issue of whether the P’s should be able to sue in negligence for disclosures when the harm was a result of the disclosure of information and opinions in circumstances where – if a defamation claim had been brought – the communication would have been privileged.
The core of the complaint by each appellant is that he was injured as a result of what he, and others were told. Evidently, there is an intersection with the law of defamation that resolves the competing interests of the parties through well-developed principles about privilege and the like. To apply the law of negligence in the present case would resolve that competition on an altogether different basis[34]. It would allow recovery of damages for publishing statements to the discredit of a person where the law of defamation would not.
Cf the earlier Victorian Supreme Court decision of Wade v State of Victoria (not mentioned in these cases).

Tame v NSW; Ansetts v Australian Stations Ltd [2002] HCA 35
FACTS: Tame was involved in a motor vehicle accident. She was taken to hospital for treatment where police took a blood sample for a blood alcohol reading. The sample confirmed that she had not been drinking. Other driver had a blood alcohol reading of 0.14. As a result of a police error police report stated T had a blood alcohol reading of 0.14 but the error was rectified. T was upset and worried that people would find out about the entry and that it would tarnish her good name. This led to an obsessive illness and ultimately a claim for nervous shock.
HELD: HC appears to have provided some support for limiting the remedy available for negligence where it cuts across tort of defamation.
Gleeson CJ: The case seems to be governed by the same principles as resulted in the denial by this Court of the existence of a duty of care in Sullivan v Moody.
The primary duty of a police officer filling out such a report is to make available to his or her superiors, honestly and frankly, the results of the observations, inquiries and tests that were made. It would be inconsistent with such a duty to require him to take care to protect from emotional disturbance and possible psychiatric illness a person whose conduct was the subject of investigation and report.
As in Sullivan v Moody, this is a case where the appellant claims to have been injured in consequence of what others were told about her. There is the same intersection with the law of defamation. In the events that occurred, Mrs Tame's reputation was not harmed. But suppose it had been. Then the law would have engaged in an exercise of balancing the rights and responsibilities of Mrs Tame and Sergeant Beardsley by reference to considerations many of which would be rendered irrelevant by the application of the law of negligence.
Gaudron J: The cause of her nervous shock was not the inaccurate recording of her blood alcohol level, but its communication to others. The law of negligence ought not be extended in disconformity with other areas of the law (such as defamation)
McHugh J: Mrs Tame's psychiatric illness is the product of her concern for her reputation. There is no doubt that the publication of the report to the insurer defamed her. She could have sued for damages for defamation. If successful, she could have recovered all the damages in that action that she sought in the present action including damages for her psychiatric illness.
In determining whether Sergeant Beardsley owed a duty of care to Mrs Tame, it is proper to take into account - quite apart from the issue of reasonable foreseeability - that the law of defamation appears a more appropriate medium for dealing with the facts of her case than the law of negligently inflicted nervous shock. The law of defamation has various defences that reconcile the parties’ competing interests more appropriately than the law of negligence.
Callinan J: Whilst it may be accepted that a P is entitled to avail herself of whatever remedies are available to her, it is important that a decision and the reasoning leading to it, in an unusual case, which this one is, be in harmony with available related causes of action, and the common law as a whole or, as it was put by this Court in Sullivan that they not offend the "coherence of the law." The facts of this case might conceivably have given rise to actions in negligent misstatement (if that action is not confined to claims for economic loss) and defamation. That these causes of action may also be available is relevant to the question whether the appellant should recover damages for "nervous shock" on the basis of those facts.

Position in NZ:

Balfour v AG
FACTS: File note on a teacher said that he was a long practicing homosexual. As a result the teacher never got a job. He sued for negligent misstatement. Should they close down negligent misstatement law because it would undermine the law of defamation?
HELD: Any attempt to combine the laws of negligence and defamation should be avoided. They are two distinct areas and should be kept as such reputation is best left to defamation law. He did not win in negligence, but won in defamation.

Position in UK:

Spring v Guardian Assurance
FACTS: The plaintiff was employed as a company representative of Guardian insurance until his dismissal. After he left he had very little success in gaining employment at other firms. This is because his former employers had written him a very bad reference. If the plaintiff had sued for defamation he would have failed on the basis of qualified privilege
HELD: It would be unjust not to offer the tort of defamation in this circumstance. Freedom of speech does not necessarily entitle as statement to be made without the exercise of reasonable care. If there is a relationship of such proximity as employer and employee, a duty of care when a report is written about somebody to ensure that the report is accurate.

Position in Australia: Two views

Wade v State of Victoria [1999] 1 VR 121
FACTS: QLD government wrote to the police and asked for information about the P. The police replied and gave a report about Wade (the P). It said internal investigations about Wade had not been completed, but that Wade was previously found to be involved with criminals. He loses his job in the gambling industry and could not find a new one. He sues for defamation. He argued the police at least owed him a duty of care claiming negligent misstatement causing economic loss. A policy issue that arose was the difference between defamation and negligence.
HELD: Defamation law has been developed to help law of freedom of speech. Under this argument, if you expand duty of care relating to negligent misstatements then you are ruining the delicate balance between law of negligence and the law of defamation. Unless the police were acting with malice, they were allowed to use defence of qualified privilege.
Should privileged statements be made with reasonable care, or does this involve an expansion of the law of negligence?
“The law of negligence is capable of protecting adequately those who take due care to ensure that the information given is accurate and that the person to whom the information is directed is told what he or she needs to know. In other words, the person providing the information need not necessarily guarantee its correctness nor, of course, warrant the accuracy of opinions expressed. If opinions are reached after due consideration of all the information reasonable available, and if they are (where necessarily) appropriately qualified, then no liability in negligence would arise” (same applies in relation to employees giving a reference)

What is qualified privilege?
A privilege offering protection in an action in defamation where the person who made the communication had an interest or a duty, ‘legal, social, or moral’, to make it to the person to whom it was made, and the person to whom it was made had a corresponding interest or duty to receive it: Adam v Ward [1917] AC 309. It will not be available if the publication was motivated by malice or an improper purpose: Calwell v Ipec (1975) 135 CLR 321; 7 ALR 553

Under Defamation Act 1974 (NSW) s22(1), qualified privilege exists whenever the recipient has an interest in receiving the defamatory material, provided the publication is reasonable.
The relevance of the media comes in, when they publish items that affect reputation, and where there is no remedy in defamation.

Sattin v Nationwide News
FACTS: A photo was published with the caption – newly weds David Leslie and Janette Stain enjoyed a celebratory drink at the beach bistro. The plaintiff was in fact married to somebody else and that she was a ‘bigamist or an irresponsible person who lied about her married status.’ This claim was bought in defamation but she sought to change it to negligence.
HELD: Levine J rejected the claim favouring the NZ position he did however postulate that negligence could only be pleaded when no defence of privilege, comment or justification would be available, and where the statement caused physical injury.

GS v News Limited
FACTS: A doctor had an affair with at patient who for the purpose of medical tribunal proceedings was named ‘GS’. ‘GS’ was photographed after the proceedings with her face partially distorted. The plaintiff sought damages for negligence
ISSUE: Should the plaintiff’s statement of claim be struck out on the basis that defamation was a more adequate?
HELD: Levine J: The plaintiff in this case was complaining of the publication – this is different to seeking damages for loss of reputation. A defamation action proclaims the plaintiff in the context that that persons reputation has been harmed. Levine J refereed to his earlier judgement in Sattin v Nationwide News. The facts in this case what was published was not false and therefore did not fit within the Sattin Principles. It would be contrary to the interests of justice to seek a remedy for personal injury to her good name.

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Defamation: Preliminary Issues

1.   Libel and Slander

•   Defamation Act 2005 (NSW) s7: Slander is actionable without special damage in the same way and to the same extent as libel is actionable without special damage. Same as Defamation Act 1974 (NSW) s8.
•   Broadcasting Services Act 1992 (Cth) s206: For the purposes of the law of defamation, the broadcasting of matter is taken to be publication of the matter in a permanent form.
•   Defamation applies to written and statements, drawings, cartoons etc
•   There is a historical distinction between Libel and Slander. Libel seems to be the written form of defamation. At common law, you need to prove special damage in order to sue for slander (economic or financial loss). There are four categories where you need to prove financial loss. They are:
o   Where the imputation is that the person is guilty of a serious offence
o   Has a disease
o   Is unfit in their profession or trade
o   Imputation of female unchastity is actionable per se.
•   In order to bring a claim in these cases of slander, you did need to show financial loss, unless it comes in one of the categories above (do not need to show loss for libel)
•   In NSW, s7/8 of the DA, says distinction remains, but you do not need to prove special damage or financial loss in either case. They are both actionable per se.

Dictionary Definitions of Libel and Slander
•   Libel: Defamatory material expressed in print, writing, or any other mode of communication capable of being comprehended visually. Alternatively, libel has been held to be defamatory material in permanent form.
•   Slander: A non-permanent defamatory statement expressed in spoken words or some other transitory form such as gestures or non-verbal sounds such as hissing.
•   In NSW, libel and slander now come under the general tort of defamation: DA 1974, s8
•   Criminal Defamation: there is a possibility of crime of defamation – s50(4), but can only pursue that claim with the approval of the AG.

2. Criminal Defamation

Crimes Act 1900 (NSW) s529
Defamation Act 1974 (NSW) s50 Offence
(1)   A person shall not, without lawful excuse, publish matter defamatory of another living person:
(a)   With intent to cause serious harm to any person (whether the person defamed or not), or
(b)   Where it is probable that the publication of the defamatory matter will cause serious harm to any person (whether the person defamed or not) with knowledge of that probability
(2)   In ss(1), publish has the meaning which it has in the law of tort relating to defamation
(3)   An offence under this section is an indictable offence
(4)   Proceedings for an offence under this section requires written consent of the AG
(5)   In any such proceedings, a consent purporting to have been signed by the AG is, without proof of the signature, evidence of that consent.

3. Who can sue for defamation? (Plaintiffs in defamation actions)

•   An action for defamation may be brought by any living person. However, since reputation is treated as person to the P, an action for defamation commenced by the P comes to an end with his or her death (McLean v David Syme & Co Ltd (1970) 92 WN NSW 611) and does not survive for the benefit of his or her estate in all jurisdictions except Tasmania.

Public Figures: cf US Position
o   In Australia there is no special barrier for celebrities and politicians to push for a case of defamation – anyone can claim (as opposed to in the US)

Corporations: In NSW corporations employing 10 or more persons now do not have a cause of action for defamation (DA (NSW) s8A). Elsewhere, a trading co. may maintain an action for defamation for damage to its business reputation or goodwill, but naturally has no personal reputation or feelings which may be hurt: Comalco. Note:
•   Trade unions may also bring an action for allegations concerning the way it conducts its affairs: Randwick Labor Club Ltd
•   Unincorporated Associations such as a social, sporting or charitable club or society which has not become registered has no legal personality and therefore cant sue for defamation: Cother v John Fairfax & Sons (1947) 64 WN (NSW) 154

ABC v Comalco Ltd (1986) 12 FCR 510, 599-603 per Pincus J
FACTS: Sued the ABC for a 4 Corners program. They were critical of open cut mining and its effects on Aboriginals. C said that it resulted in the following imputations:
•   The plaintiff treats the Aborigines at Weipa like dogs;
•   That by its mining operations at Weipa, the plaintiff continues the deliberate killing of Aborigines commenced by early Australian settlers.
HELD: A defamatory statement to the effect that a trading company carries on its business in a dishonest or criminal manner is likely to injure its reputation in the way of its business.
•   You can only claim economic damages
•   However cannot get compensation for hurting your feelings. It is a company. It does not have ‘feelings’.
•   “A company cannot be injured in its feelings…only …in its pocket. Its reputation can be injured by a libel but that injury must sound in money. The injury need not necessarily be confined to loss of income. Its goodwill may be injured”: Lewis v Daily Telegraph
•   Two principles:
o   Corporation can only sue in defamation where it has been injured in business
o   Financial harm on the business is caused. Corporation can claim damages for financial harm caused. But no pecuniary harm in relation to feelings

Criticism of corporation reflecting on its directors: A defamation aimed at a company may also harm the reputations of members of the Board – who will have a personal defamation action in their own right. E.g.:

Randwick Labor Club Ltd v Amalgamated Television Series Pty Ltd
[1999] NSWSC 880
FACTS: “Seven Nightly News” stated that Randwick Labor Club was a slush fund club for the Labor Party. The Club and the Directors of the Club, claimed defamation
HELD:
•   When a company becomes insolvent, any defamation cases are brought by the Liquidator
•   Trade Unions can sue for defamation because they may lose money on subscriptions
•   NGO’s can also claim for defamation if you impair their ability to claim charitable objects
•   All this is CL – note the difference under statute above

Can a Corporation sue for Defamation in NSW?
•   CL position is altered by s8A of the Defamation Act
(1)   A corporation has no cause of action for defamation in respect of the publication of any matter by means of which a defamatory imputation about the corporation is made.
(2)   Nothing in subsection (1) precludes an individual who is a member of a corporation from asserting or enforcing a cause of action in defamation in respect of the publication of any matter by means of which a defamatory imputation about the individual is made where the same publication also makes a defamatory imputation about the corporation.
s8A(3) It preserves the right of corporations to sue for defamation if:
(a)   the corporation employs fewer than 10 persons at the time of publication of the matter, and
(b)   the corporation has no subsidiaries at the time within the meaning of the Corporations Act 2001 (Cth)
(4) In this section, corporation includes any corporation constituted by or under an Act or any other law (whether or not for a governmental or other public purpose)

Governmental bodies: Cannot sue for defamation

Ballina Shire Council v Ringland (1994) 33 NSWLR 680
FACTS: Ringland accused Ballina Shire Council of conducting sewage disposal. Allegations that the council was “secretly and unlawfully, was setting out to deceive residents, was falsifying published environmental material, and had misled environmental authorities”
HELD: 2:1 majority NSWCA said the legislation (s9 of the Act) does not set out to protect an elected government body.
Gleeson CJ: “The idea of democracy is that people are encouraged to express their criticisms, even their wrong-headed criticisms, of elected governmental institutions, in the expectation that this process will improve the quality of the government…To treat governmental institutions as having a “governing reputation” which the common law will protect against criticism on the part of citizens is, to my mind, incongruous”…The right to an individual, even one in public life, to his or her personal reputation is one thing.
Injurious Falsehood: The Council also made a claim on the basis of the tort of injurious falsehood. It alleges that the matter was published falsely and maliciously, and that in the consequence, the council has suffered financial harm ($800 to organise another Council Meeting).
An action for injurious falsehood (sort of similar to an action in defamation) will lie in certain circumstances where one person maliciously publishes a false statement about or affecting another, and where actual damage has resulted. In an appropriate case, a local authority can maintain an action for damages of this kind.

There can be situations where an action for injurious falsehood can be brought in relation to the publication of false matter that is also defamatory. However, the interest protected by a claim for defamation would be quite different from the interest protected by the action for injurious falsehood (the P’s business as a landlord). To succeed in an action to vindicate the latter interest the P would have to prove actual damage, whereas in the former case damage would be assumed.
Two important points come from this: The governmental body must be elected, and the reputation that is not protected is the governing reputation
Majority view:
It seems there are 2 arguments here:
•   The “sovereignty” argument
•   The “accountability” argument – the point is that the elected government has to take responsibility, and that includes being criticised and taking that criticism
Majority held that injurious falsehood remedy could be open to an incorporated local council, but not under defamation
•   Gleeson CJ says the DA is not a code, and it is up to the court to decide whether or not there is protection for the corporation. That is, the statute is not a code upon the law of defamation, but builds upon, and alters in certain respects, the principles established by the CL.

Mahoney JA in dissent developed a theory worth considering. He questions such a blanket rule being imposed;
•   The freedom to speak freely is a great public good
•   He thinks Freedom of Speech is a qualified right to begin with:
o   “But free speech is not a slogan, the articulation of which makes thought unnecessary…free speech is not an end in itself but a means to other ends; the freedom which it involves has never been an unqualified but is a qualified freedom; and a price must be paid for it.
o   Freedom of speech is supported, not so that harm may be done, but despite it…Freedom of speech is supported because it is a means to ends which are held to be desirable and which cannot be otherwise achieved.
•   Some ends achieved include: ideas may be developed freely, culture may be refined, and arrogance or abuse of power may be controlled. These ends are important ends in a free society. Hence, freedom of speech is an apparatus of socially controlling power and the exercise of public power
•   The power of the media is arbitrary – the media exercises power, because and to the extent that, by what it publishes, it can cause or influence public power to be exercised in a particular way. And it is, in the relevant sense, subject to no laws and accountable to no-one: it needs no authority to say what it wishes to say or to influence the exercise of public power by those who exercise it.
•   Majority view would permit media to exercise uncontrollable and arbitrary power over public authorities
•   Roger thinks on balance, Mahoney is wrong. He says the law can not possible cover everything. Malicious falsehood seems to be good enough

Some general points about Defamation from Ballina:
•   The law of defamation in this State is based partly on the CL, and partly on statute. It involves a balancing of interests of those whom it protects in the maintenance of their reputation, and the interests of the community in free speech.
•   The law protects the reputation which a person has and, subject to carefully defined qualifications, it permits the recovery of damages for injury to such reputation, even where that results from statements of honestly held beliefs or opinions.
•   A defamatory imputation is one that tends to lower a P in the estimation of others, or exposes the P to hatred, contempt or ridicule, or injures the P in the P’s office, trade or profession.

NSW Aboriginal Land Council v Alan Jones [1998] NSWSC 25 (17 March 1998)
FACTS: The NSW ALC drew its membership from regional members of the Aboriginal Council. Body was set up to fulfill a political governing function. One of the D’s used the radio station and criticised the council and so it sued in respect of defamatory statements by Jones.
Issue was whether the council had standing to sue. Did it make a difference that it was not representative of the entire community?
HELD: Held the land council was a statutory authority, democratically elected, albeit by Aboriginals, was sufficiently analogous to a local council and so could not sue for defamation.
There was no need for an electoral nexus between the publisher and the defendant. (NB – this clashes with the Sov/ representative argument made in Ballina.

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Continued

4. Where can they sue?

In what courts can defamation action be brought in NSW?
•   In the NSW District Court, a defamation action is heard without jury – but you can ask for a jury to hear the case
•   In the SC, it is heard with a jury unless specified otherwise.
•   SC Act s8 – but it can go before a judge alone if it will take too long with a jury, or if all the parties are ok to have it just go before the judge
The Plaintiff’s case: The Defamation

1. The elements of the cause of action for defamation

1.   Defamatory matter;
2.   Identifying (published “of and concerning”) the plaintiff and;
3.   Published by the defendant
In other words:
1.   The defamatory matter – concerns material that is defamatory
2.   Identifying (Published “of and concerning”) the Plaintiff – the P must be identified as the person to whom the defamatory matter relates. (In other words, the defamatory matter must be published “of and concerning” the P) and;
3.   Published by the Defendant – the D must have published the defamatory Material. The media could print someone else’s defamatory statement and still be sued/

Defamatory “Matter”
•   Must have a defamatory imputation
o   In most States, you must have defamatory matter that contains one or more imputations.
•   In NSW, it is the imputation itself that gives rise to the cause of action. In NSW, P must plead all specific meanings contended arise from the published matter and D must be able to respond to the specific meaning that the P is trying to establish. P must persuade Court that these imputations did arise.
•   In the code states, the defamatory matter will give rise to one cause of action where imputations arise from the natural and ordinary meaning of the words used.
•   In NSW, each imputation is a separate cause of action that must be proved. Identical words can give rise to numerous causes of action depending on the imputations derived from them. Each meaning has to be pleaded: Marsden
•   No requirement that the matter complained of was false, or that it was printed maliciously.
•   DA s 9(2): “Where a person publishes any matter to any recipient and by means of that publication makes an imputation defamatory of another person, the person defamed has, in respect of that imputation, a cause of action against the publisher for the publication of that matter to that recipient…”
•   Aim of s9(2) is to assist the P as to the cause of action they are pleading to.

•   Defamation Act 1974, s9: Cause of Action
(1) Where a person publishes any report, article, letter, note, picture, oral utterance or other thing, by means 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

Chapman and Chapman v ABC (2000) 77 SASR 181, at 188-190
HELD: In NSW, each imputation which arises out of the published words creates a separate cause of action: DA, s9(2). It is therefore necessary in NSW to plead imputations.
When P’s plead a true innuendo, that is, when the words are not ex facie defamatory, but depend upon extrinsic facts and circumstances, then the P’s must give particulars of the imputation or imputations said to arise and the extrinsic facts (i.e. evidence) and circumstances known to the persons to whom the publication was made: Lewis v Daily Telegraph Ltd [1964] AC 234.
The imputation which the words might bear is to be determined as an objective test.
The intention of the publisher is irrelevant and so also is the meaning those to whom the words were published might give the words. The test is whether reasonable people might understand the words in a defamatory sense: Hough v London Express Newspaper Ltd [1940] 2 KB 507 at 515.
The words will be construed in their natural and ordinary meaning which reasonable men of ordinary intelligence with the ordinary man’s general knowledge and experience of worldly affairs would be likely to understand them. The words should not be given any strained, forced or unreasonable interpretation.
In considering whether the published words give rise to the pleaded imputations it is appropriate to have regard to the whole of the article.

2. Functions of Judge and Jury
Common Law Principles:

1. The first question of law for judge: is the matter complained of capable of bearing the imputations the plaintiff has pleaded, to an ordinary reasonable reader? (Farquhar v Bottom concerned this question). (s7A(1))
2. If yes to (1), are those imputations capable of defaming the plaintiff? (s7A(1))
NB Judge acts as a filter before any evidence goes to the jury
If yes to (1) & (2):
3. (The first question of fact for the jury): Would the ordinary, reasonable reader, in fact, have read the matter as conveying the imputations pleaded by the plaintiff?
If yes to (3):
4. Would the ordinary, reasonable reader have understood the imputations to be defamatory (applying the appropriate test)?
NB: If 1 to 4 are established, question of defence arises.

Defamation Act (NSW) 1978; Functions of the judge and jury
s7A
(1)   If proceedings for defamation are tried before a jury, the court and not the jury is to determine whether the matter complained of is reasonably capable of carrying the imputation pleaded by the P and, if it is, whether the imputation is reasonably capable of bearing a defamatory meaning.
(2)   If the court determines that:
a.   The matter is not reasonably capable of carrying the imputation pleaded by the P, or
b.   The imputation is not reasonably capable of bearing a defamatory meaning,
The court is to enter a verdict for the D in relation to the imputation pleaded.
(3)   If the court determines that:
a.   The matter is reasonably capable of carrying the imputation pleaded by the P, and
b.   The imputation is reasonably capable of bearing a defamatory meaning,
The jury is to determine whether the matter complained of carries the imputation and, if it does, whether the imputation is defamatory.
(4)   If the jury determines that the matter complained of was published by the D and carries an imputation that is defamatory of the P, the court and not the jury is:
a.   To determine whether any defence raised by the D (including all issues of fact and law relating to that defence) has been established, and
b.   To determine the amount of damages (if any) that should be awarded to the P and all unresolved issues of fact and law relating to the determination of that amount.

Farquhar v Bottom [1980] 2 NSWLR 380
FACTS: Plaintiff was an ex-Chief Magistrate for NSW. He complained about things said about him in the book “Godfather in Australia – Organised Crime’s Australian Connections”. He pleaded against Chapter 19: “The Cessna Affair”. This concerned a major drug case, involving a reported $1.5M drug seizure, where Cessna was let off on a good behaviour bond. Imputations pleaded:
*    The plaintiff as Chief Magistrate had acted contrary to his judicial oath in the hearing of a criminal matter
*    The plaintiff as Chief Magistrate had considered events and/or submissions and/or evidence and/or matters occurring outside the evidence and outside the courtroom in his determination of a serious criminal matter
These original imputations were considered unsatisfactory. First, it was doubted whether ordinary people would know that magistrates take oaths. The second was defective because it fails to describe in sufficient detail what the Magistrate actually did wrong. It looked like they were trying to lump several imputations into one. Judge said he would consider the imputations as if to read:
(i)   That the P as a Chief Magistrate in the hearing of a criminal matter had failed to act in accordance with his judicial duty
(ii)   The P as a Chief Magistrate in his determination of a serious criminal matter had improperly considered events or matters outside the evidence before him and occurring outside his courtroom
Illustrates nature of job that judge and jury needs to do.
HELD: The only issue before the judge is whether the matter complained of is capable of conveying those imputations to the ordinary, reasonable reader. That is a question of law: Jones v Skelton. Whether those imputations are capable of defaming the P is another question of law. The defamatory capacity of the imputations must be determined as a separate question.
If both these questions of law are answered in favour of the P, it then becomes necessary for the jury to determine (a) whether the ordinary reasonable reader would, in fact, have read the matter complained of as conveying those imputations, and (b) whether that reader would in fact, have understood such imputations as being such as to cause ordinary reasonable folk in the community, taken in general, to think the less of the P: Gardiner v John Fairfax.
Appeals and “preverse” verdicts:

John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 59 (10 September 2003)
FACTS: Rivkin sued for imputations said to have been conveyed to the ordinary reader and defamatory of him. The publications appeared in: the AFR, and in 2 issues of SMH. The jury said the imputations did not arise. Rivkin wanted findings to be overturned as being unreasonable.
HELD: By section 7A(1) of the Act, it falls to the judge, where proceedings are to be tried in part before a jury, to determine whether the matter complained of is “reasonably capable of carrying the imputation pleaded by the P” and “reasonably capable of bearing a defamatory meaning”. The section recognises a judicial filter. Once the judge filters out all the more “imaginative” imputations, it remains, in accordance with s7A(3), for the jury: “to determine whether the matter complained of carries the imputation and, if it does, whether the imputation is defamatory”.
Both Kirby and Callinan JJ held that a finding against the jury’s decision in a Court of Appeal should only be permitted in extreme cases, where the decision is unreasonable.
Kirby J: “Jury decisions are still accorded a special status in our law because juries are taken to represent a microcosm of the entire community. That is what is meant by calling the jury the “constitutional” tribunal of fact.” He thought the imputation did arise, but what the judge thinks is irrelevant. Only overturn if the jury’s decision is unreasonable.
Callinan J: Although the jury’s decision is not impregnable, it does have an authority over and above that of a decision of a judge sitting alone to determine a factual question. Being representative of the community, its members are better placed to than judges to give meaning to, the words and its impact upon the community. Nor should it be assumed that juries approach their task with heightened or lowered suspicion or prejudice. Occasions for judicial correction of jury verdicts will be extremely rare. But such occasions do arise… A finding of a jury may only be overturned if it is one that no reasonable jury could reach.

First Requirement - DEFAMATORY MATERIAL

3. What imputations arise? Interpreting the meaning of words

There are 2 stages in determining whether the statements give rise to defamatory imputations:
1.   Imputations (or what does it mean?)  NB the principles that apply to determining meaning.
2.   Defamatory imputations (or, are these meanings defamatory?)  NB the principles that apply to determining the “defamatory quality” of pleaded imputations
NOTE: False or unreasonable imputations are discarded.

Test to be applied:
Test of reasonable persons
Expects fair average intelligence of the reader. Legally constructed hypothetical lay person – not a lawyer. How the material was capable of meaning is irrelevant. Someone who is not perverse, suspicious of mind, can read between the lines, have some general knowledge of worldly affairs etc. What the publisher intended to convey is irrelevant. It is the understanding by the material by a hypothetical person that is crucial: Farquar v Bottom.

Farquhar v Bottom [1980] 2 NSWLR 380
FACTS: See facts above. At some point throughout the proceedings, the matter had changed from being dealt with as an indictable offence, to a summary offence. There were suggestions that he had discussed the case with people outside the courtroom. P denied these accusations. P claimed the following imputations:
(iii)   That the P as a Chief Magistrate in the hearing of a criminal matter had failed to act in accordance with his judicial duty
(iv)   The P as a Chief Magistrate in his determination of a serious criminal matter had improperly considered events or matters outside the evidence before him and occurring outside his courtroom
ISSUE: Whether the imputations are capable of arising, and secondly capable of defaming the P.
HELD: Hunt J: The test to be applied is that of an ordinary reasonable reader. Any strained, forced or utterly unreasonable interpretation would be rejected.
The mode of publication is important in determining what imputation is capable of being conveyed. Court suggested that greater thinking could be involved when reading a book as opposed to a newspaper.
The question of whether the imputations do arise and do defame the P must always be left to the jury, unless a verdict in the P’s favour would be set aside as unreasonable or perverse.
D conceded that reference to “Godfather” would be understood by ordinary reader as giving a flavour of corruption. Also notes how the P is made to look dodgy, when he gave an 18 month bond even though drugs were initially valued at $1.5M and after all the publicity as a huge drug case.
Hunt J noted there were rare instances where refuting the defamatory charge will make the imputations incapable of arising. For example, where the imputation only arises by inference, or if there is an express disclaimer that it doesn’t intend to convey any imputations. However the situation doesn’t arise here.

Both imputations are capable of arising. Moreover, he could not say that a verdict in the P’s favour would be set aside as unreasonable or perverse. D ordered to pay P’s costs.

Amalgamated Television Services v Marsden (1998) Aust Torts Report 81-462
FACTS: Marsden was represented on the “Witness” show as being a paedophile, having sex with under-aged boys. Among those boys, were the Murphy brothersone who went onto commit the murder of Anita Cobby. He pleaded several imputations to the effect that he has had sex with under-aged boys, or with male prostitutes. However the imputations subject to the appeal was:
(g)   P caused the rape and murder of Anita Cobby by Lesley Murphy in that he was one of a number of men who had anal intercourse with M when he was under 13 yrs of age which acts caused Murphy such grave psychiatric damage that he raped and murdered Ms. Cobby
(h)   P caused the murders of two men by Andrew Tregurtha in that he was one of a number of men who subjected T to inhuman and degrading acts of physical abuse when he was a child, these acts caused T such grave psychiatric damage that he committed the 2 murders.
HELD: They referred to s9(2) of the DA, which notes that each imputation amounts to a separate cause of action. Thus it is a fundamental rule that the D is entitled to know the nature of the case to which he must plead. The imputation must be stated with sufficient precision to avoid confusion relating to the meaning for which the P contends. The problem here was with the use of the word “caused”. This word is a “weasel word” in that it is ambiguous and noone will ever know the way in which it is being used or understood.
P was granted leave to re-word the imputations in the following form:
(g) The P bore a responsibility for the rape and murder of Anita Cobby by Lesley Murphy in that he was one of a number of men who had anal intercourse with Murphy when he was under 13 yrs of age which acts in combination caused Murphy such grave psychiatric damage that he raped and murdered Ms. Cobby.
(h) The P bore a responsibility for the murders of two men by Andrew Tregurtha in that he was one of a number of men who subjected T to inhuman and degrading acts of physical abuse when he was a child, these acts in combination caused T such grave psychiatric damage that he committed the 2 murders.
The new imputations state that it was the collective effect that led to the murders.
Quoted the ordinary person test from Farquhar.
Also noted the mode or manner of publication is a material matter in determining what imputation is capable of being conveyed. Newspaper may be taken more seriously than say, tabloids. Electronic media (e.g. Radio and TV) is a more fragile medium since it is not as permanent as written media. The more sensationalist the media, the less likely the reader is going to take the information seriously.

NB - There is also a difference between an inference and an implication.
Implication: is part of that which is expressed by the publisher. It is something that the reader understands the publisher as having intended to say.
Inference: is something which the reader, listener or viewer adds to what is stated by the publisher; a conclusion drawn from what has been expressly or impliedly said by the publisher.

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Continued

NATURAL AND ORDINARY MEANING:

(i)   The Matter Itself

“Ordinary and natural meaning” – encompasses:
•   The literal meaning;
•   Any implied, inferred, or indirect meaning.

Summary
a)   Any meaning capable of being detected from the language itself (not requiring the support of extrinsic facts which are not a matter of general knowledge) can be called part of the ordinary and natural meaning of the words. Includes any implication or inference a reasonable reader guided only by general knowledge (not fettered by strict legal rules of construction) would draw from the words: Jones v Skelton
OR
b)   Meanings that arise by innuendo requiring special extrinsic facts.

A defamatory imputation may be made by reliance upon the natural and ordinary meaning of the words published, or by innuendo. Where no true innuendo is pleaded, and the words clearly relate to the P, the issue can be determined by asking whether an ordinary reasonable person would understand the words in a defamatory sense. The basic question is whether the matter complained of would tend to lower the subject in the estimate of an ordinary, reasonable member of society. Thus P must plead every imputation.
Once they have pleaded the imputations, the case is confined to those meanings and the P can not go back and seek a verdict based on a different meaning. However, minute differences from the meanings pleaded would still be ok.

Random House Australia Pty Ltd v Abbott (1999) 167 ALR 224
FACTS: This was an appeal from orders made in the SC of the ACT, awarding damages for defamation against Mr. and Mrs. Abbott, and Mr. and Mrs. Costello. The “matter complained of”, was in the book Goodbye Jerusalem: Night Thoughts of a Labour Outsider, by Bob Ellis:
“Abbott and Costello”, said Rodney Cavalier, pacing up and down his baronial mansion after serving me for dinner as was his custom bread and water, they’re both in the Right Wing of the Labor Party till the one woman fucked both of them and married one of them and inducted one of them into the Young Liberals”. Random House published the book.
IMPUTATIONS: Arising from the ordinary meaning and were pleaded included:
•   That the political commitment of Messres Abbott and Costello to the Liberal Party was so shallow that they were prepared to change allegiance from Labor to Liberal in exchange for a sexual liaison.
•   That one of the female P’s was a “political manipulator” because she had exploited a sexual liaison in order to recruit men from one political party into another.
•   That Mrs Abbott and Costello were to be suspected of being sexually promiscuous.
HELD: Beaumont J:
Test for liability; A person may be defamed by an imputation of a disability in the performance of their functions, even if it does not expose them to hatred, contempt or ridicule. A false statement about a person to their discredit is defamatory. It is not necessary that there should be an imputation of immoral or disgraceful conduct. It may also be defamatory if it tends to lower them in the estimation of others.

HELD the imputations did arise and here, they were so obvious, that it would have been enough if they just identified the matter complained of. A reasonable reader would react to the “story” with the response that the P’s reputation had been discredited and that the professional and official reputations of the two men had also been discredited, with the consequence that members of the community would have thought less of them. On a natural and ordinary reading, the matter complained of defamed the P’s.
Random House tried to argue that there was no defamation and they should be read as two independent statements: (1) P’s had pre-marital sex (2) the men changed political allegiances. This was rejected. The statements must be viewed in their context. Looked at in this way, the statements were not independent.
However the imputation that the wives were “to be suspected of being sexually promiscuous” was struck out. He accepted the allegation of unchaste, but not of promiscuity. He noted that in NSW, the only meanings that arise are those that have been pleaded. Imputation of promiscuity was struck out – not capable of arising from the passage complained of. If this case had arisen in NSW, each separate imputation would need to be pleaded. Under the ordinary meaning, promiscuous means “indulging in sexual intercourse with a number of partners” for no particular reason and this was not the case here.

Note on Jurisdictional Issues:
▪ NSW position, every different meaning is a separate cause of action. In other CL jurisdictions, the defamation arises from the matter itself. Because words can be ambiguous, in NSW, it is necessary to clarify what imputations are being argued. In CL jurisdictions, there is no need to give imputations since it is based on natural and ordinary meaning of words that naturally arise from the material. However the Court may require you to plead particulars, where more than one meaning can be implied from the words. This is why Beaumont J said he didn’t think it was necessary to state imputations – that it was enough just to specify the matter complained of.

Hepburn v TCN Channel None Pty Ltd [1983] 2 NSWLR 682
FACTS: A TV broadcast from “60 minutes” – Jana Wendt interviewed Dr. Hepburn, medical superintended of the Preterm Family Planning Clinic. Extract shows Dr. Hepburn objecting to being called an “abortionist”.
IMPUTATIONS: (a) The P unlawfully procures miscarriages;
                             (b) The P is an abortionist
HELD: The main issue was with the imputation (b), because the P had not specified which meaning had been intended. However, Glass JA said there was no reason why he should have to define the sense in which the D employed the general expression. “If the P is castigated as a criminal, criminality is predicated of him in all its amplitude…The D is expected to know what his language conveyed and that, in adopting an epithet with a spread of meanings, he will be understood as imputing them all.”
Because anti-abortionists think abortion is morally wrong, even if the word meant a ‘lawful’ abortionist, it would still excite both approbation and disapprobation in different sections of the community. Therefore defamation can occur where the words may lower him in the estimation of some, whilst exalt him to hero status to others. The imputation was held to be capable of arising and capable of being defamatory. (Remember that whether it does are, and is defamatory is a different question, determined by the jury)
Note: Distinguished from other cases of failure to raise specific imputations since this concerned only ONE word. No need to specify all the meanings of only one word.

Chakravarti v Advertiser Newspapers (1998) 193 CLR 519
HELD: Kirby J outlined various principles of defamation law:
1.   Matter complained of should be considered in the way that a reasonable person, receiving it for the first time, would understand it according to its natural and ordinary meaning.
2.   In a defamation action, the matter complained of will be analysed most closely during the trial. When analysing the words, courts and tribunals should remember that the ordinary reader is a layman, not a lawyer. They approach the perception of the matter complained of in an undisciplined way and with a greater willingness to draw inferences and to read b/w the lines than what a lawyer might do. Where words have been used which are imprecise, ambiguous or loose, using a very wide latitude will be ascribed to the ordinary person to draw imputations adverse to the subject.
3.   He referred to Charleston, (Harold and Madge case), where it was held that an ordinary person looks at the whole of the article (heading, pictures, and text). He rejected this notion and said many people do not look beyond the headlines and photographs. To adopt the principle in Charleston would be to defy common experience and common sense!
4.   The ordinary reader will draw conclusions from general impressions. They will not re-read or review the matter complained of. They tend to be specifically influenced by headlines, graphics and other techniques adopted by mass media organisations. Society is increasingly demanding immediacy and thus publishers must take special care in getting their attention quickly. But must be careful not to diminish the reputations of people when doing this.
5.   Nevertheless, the decision-maker also has to remember the importance of freedom of communication. This too is a fundamental right. Reconciling the attainment of freedom of communication in circumstances where the individual’s reputation is also protected is a function of the law of defamation.

(ii) The surrounding context

Words do not exist in abstract but exist in surrounding context.

Tolley v Fry & Sons Ltd [1931] AC 333
FACTS: Advertisement in a newspaper. The D issued a newspaper advertisement depicting the P, a well-known amateur golfer, who was caricatured playing golf with a packet of the D’s chocolate protruding from his pocket.
IMPUTATION: That the advertisement (words and caricature) imputed that the “P has agreed or permitted his portrait to be exhibited for the purposes of the advertisement of the D’s chocolate; that he had done so for gain and reward; that he prostituted his reputation as an amateur golf player for advertising purposes, that he was seeking notoriety and gain by the means aforesaid; and that he had been guilty of conduct unworthy of his status as an amateur golfer”.
HELD: P did not complain the words or caricature on their own was defamatory, but rather that the portrait imputed that he had allowed it to be used in an advertisement. In context, unauthorised caricature was regarded in the circumstances as imputing he had done something inconsistent with his status. Imputation was capable of being drawn by reasonable readers.

Nixon v Slater & Gordon (2000) Aust Torts Reports 81-565
FACTS: The D’s published a booklet entitled “Medical malpractice claims…A litigation explosion?” The cover featured a photo of the 2 Plaintiff surgeons performing keyhole heart surgery on a patient, with a robed barrister examining the surgery. The photo was from the Age pictorial library, with digital enhancement. Although efforts were taken to disguise the surgeon’s identity, they were recognised by a number of recipients.
IMPUTATIONS: In its natural and ordinary meaning, they claim the book was defamatory of them. The main imputations were:
(a)   Each of the applicants had engaged in medical malpractice
(b)   That each P had so conducted himself as to be subject to be the subject of claims of medical malpractice
Note that no true innuendo or special knowledge is pleaded or relied upon by the applicants
HELD: When no true innuendo is pleaded and the published words clearly relate to the P, the issue can be determined by asking whether hypothetical referees would understand the published words in a defamatory sense. That question embraces two elements of the cause of action: the meaning of the words used and the defamatory character of the imputations. It follows that evidence is not admissible to establish the meaning of the words “used” or that the pleaded imputations were defamatory (e.g. to show an ordinary person thought the imputations arose)
It could be reasonably conveyed to a member of the medical profession that Slater and Gordon were involved in medical malpractice. Test for which implications arise had to be adapted to ordinary member of Victorian medical community . Imputation could reasonably arise when the hypothetical member of the medical profession saw this cover. Held the same conclusion would be reached even if the hypothetical referee were a member of the public. Arrived at that conclusion primarily with regard to the broad impression created by a cursory, rather than a detailed, examination of the booklet by a medical practitioner.

“bane and antidote”

Morosi v 2GB [1980] 2 NSWLR 418n
FACTS: Wilkins, a radio commentator, commented on a long-running scandal involving the alleged relationship between federal government minister, Jim Cairns, and his secretary. He was commenting on an interview conducted by Willessee screened the previous evening.
“Hers is the most notorious woman’s name in the country and now that she’s to have a baby there will be a spate of dirty jokes about her…because everybody knows that Morosi is an immoral…adventuress…who has slept with a variety of notable politicians, and most recently …with Jim Cairns. In fact, of course, nobody knows any such thing. There is indeed not even the faintest suggestion that she has ever had any such relationship with any of the men she has known…in fact, there is no stain of any kind on her character. She has been involved in some failed business ventures, and that’s about the worst that can be said against her”.
IMPUTATIONS: Each plaintiff was “improperly involved” in a “romantic or sexual association contrary to the obligations” of each of their marriages.
HELD: The D argued that the “bane” of the particular statements, that on their own are defamatory, are entirely cured by the antidote provided by the whole context of what was stated. It was held that it was not open to the ordinary reasonable reader to understand the words of the publication in a sense defamatory of the P. The sentence “she is a threat and a challenge to any man prepared to strive for her favours and her regard” is capable of diminishing the potency of the antidote. The antidote did not manifestly achieve its purpose.
Held that the trial’s judge’s direction to the jury that even though the hypothetical reader or listener is deemed to read the whole thing, it is not improper to take into account that he might have had his mind diverted to a degree by other things was correct.
Only rarely will the antidote be taken to fully dissolve the venom caused by the defamatory statement. Thus, be careful about repeating defamatory statements even if you do not agree with it.

Charleston v News Group Newspaper [1995] 2 AC 65
FACTS: Harold and Madge Bishop’s faces placed on naked body in porno game. Picture published in newspaper with ¾ inch heading saying “Strewth! What’s Harold up to with our Madge?” However, article clearly notes the photos in the game were not authorised. P’s claim that taken on their own, the photo and headline were defamatory.
HELD: Taken alone, photo may have been actionable. However, if reader had read the full article, they would have realised that the article was morally righteous. The hypothetical and reasonable reader does not just read the headings, but reads the article through to the end.
BUT – this decision has been subject to much criticism. See Kirby J’s comments in Chakravarti above. He suggests looking at the heading is enough

SPECIAL MEANINGS DEPENDENT UPON EXTRINSIC FACTS:

Distinction between “True” and “False” Innuendos:
•   False innuendos are meanings that arise when the plaintiff is relying on the natural and ordinary meaning of words or other material.
•   True innuendos: Imputations that only arise if the recipient is aware of extrinsic facts outside the general knowledge of the ordinary, reasonable recipient of the words.
Hence:
True innuendos: based on extrinsic facts, NOT natural and ordinary meaning (note that the publisher doesn’t necessarily know that members of the audience know these extrinsic facts)
AND
False innuendos: based on natural and ordinary meaning of the words

Q: How to distinguish between words in their natural and ordinary meaning, and true innuendos?

E.g. Pauline Pantsdown case. Song “Backdoor Man” was written by Simon Hunt. He used Pauline Hanson’s voice and words to make a rap song: “I’m a back door man for the KKK” and “I’m a potato”. Alleged ‘potato’ is gay male who is engaged in anal sex. But turns out Simon didn’t know that it meant this. He just used that line to exemplify the way Pauline Hansen sometimes spoke in an incoherent manner. Simply to escalate the point that she says thing that means absolutely nothing. To plead the meaning of slang words, Hanson would need to bring in extrinsic evidence that that is what “potato” means.

“True Innuendos”

Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500
FACTS: A chapter in a book, Great Cases of Scotland Yard, detailed the abduction and subsequent murder of Mrs. McKay in London. Relevant passage complained of, described a conversation between two policemen who were in the McKay home. The conversation suggests that Mr. McKay had turned to Lamb (the P), an old friend, after the tragedy. They said “trouble is…Lamb is a newspaper man who will do anything for a story – and that’s how the wires started humming and word got around that Muriel McKay was missing”.
IMPUTATIONS: The matter referred to…in its natural and ordinary meaning, contained the following imputations, each of which was defamatory of the plaintiff:
i.   The plaintiff betrayed the confidence of an old friend who had turned to him at a time of dire personal distress;
ii.   The plaintiff, in order to secure a sensational newspaper story, exploited the tragedy that had befallen an old friend;
iii.   The plaintiff, for journalistic ends, obstructed the course of the police inquiry concerning the disappearance of Mrs. Murial McKay.
Evidence of the ethical standards of journalists was admitted at trial, despite objection by the D. The evidence suggested that the conduct attributed to the P by the words complained of amounted to a breach of the journalists’ ethical code or of the required standard of journalists’ ethical behaviour.
This was an appeal from a judgment for $20,000 after jury found the second imputation established. D’s also claimed the evidence was wrongly admitted.
HELD: Brennan J said if the P had pleaded an imputation of breach of ethical standard or code, then he would have to prove this code existed and that the conduct imputed by the D had breached it. It would have been an imputation by way of true innuendo and the evidence would have been admissible to establish extrinsic facts to support it and to show that readers know about this code.
Since it was not based on true innuendo, the test is of a reasonable person and thus the evidence was not admissible to show the meaning that the reasonable person would place on the words in the book. The evidence was equally inadmissible to show the imputations were defamatory.
Regardless, the Trial Judge’s direction to the jury regarding the defamatory character of the imputations did not refer to any of the evidence. Thus there is no reason to suspect the jury erroneously took the evidence into account in determining the issue.
Readers Digest argued that the jury may have assessed damages on the footing that true innuendo had been established, even though the P had not argued it. They argued that since the P did not argue this innuendo, then the evidence from the journalist should not have been admitted. Brennan J rejected this.
There is no reason in principle why evidence should not be admitted to show the gravity of the damage done to the P’s reputation by the making of the defamatory imputation, especially among other journalists. If the jury gave weight to that evidence in assessing damages for the making of the defamatory imputation that they found, they were entitled to do so. There is nothing to suggest that the evidence was misused to establish any other issue in the trial or to establish an that which had not been pleaded.

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Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632
FACTS: Large heading in The Australian read: “Caprice owner declared bankrupt by Court”. The text following read: “A Point Piper restauranteur, George Pierce Countis, declared bankrupt in Sydney yesterday. Countis carries on business at the Caprice Restaurant, Rose Bay”. Headline was 5cm and column was only 14cm – so headline was very big in relation to the article. The heading was also technically incorrect. The owner of the Caprice restaurant was World Hosts Pty Ltd, the P. George was its manager (not its owner).
The P, a company, sued the newspaper for defamation, pleading that the words “Caprice owner” in the headline referred to it. But no innuendo was pleaded. There were a number of hearings and appeals before the case reached the HC.
ISSUE: Was the article capable of bearing a meaning defamatory of the P?
HELD: The P company argued that the article was defamatory of it, when published to readers who knew that the P company owned the Caprice Restaurant because readers would assume the company was in financial difficulties or insolvent because:
i)   Countis was either a shareholder or owner of the P and
ii)   He had been declared bankrupt.
Point i) above, was an erroneous assumption of fact. Ultimately, however, the HC held that the report was capable of bearing this defamatory meaning, in its natural and ordinary meaning (without reliance upon false assumptions).

Cassidy v Daily Newspapers Ltd [1929] 2 KB 331
FACTS: Article in the Daily Mirror about P, Mrs. Mildred Cassidy who was married to Mr Kettering Cassidy, also known as Michal Corrigan, a race horse owner. He was evidently a “womaniser”, achieving notoriety on the track for his indiscriminate relations with women. Mr. and Mrs. Cassidy didn’t live together, but we are told that he sometimes came to visit her at her flat. At a race meeting, Mr. Cassidy was photographed with Miss X, to whom he said he was engaged to marry. The Daily Mirror published the photo with an inscription to this effect. C was not named nor was she in the picture. Female acquaintances of Mrs. Cassidy read the newspaper and apparently thereafter formed a bad opinion of Mrs. Cassidy because they thought (incorrectly) that she had been masquerading as Cassidy’s wife while cohabiting with him as his mistress.
IMPUTATION: Cassidy was immoral for cohabitating with Mr. Cassidy before being married. However, the newspaper did not publish her name at all. There was just a photo, which she was not in. The quote just said that he was engaged to be married (to someone else).
HELD: It was defamatory.
The trial judge held that the publication was capable of conveying a meaning defamatory of the P. The jury was then asked to decide whether the publication did reasonably convey an aspersion on the moral character of the P, and if so, what damages were proper. The jury returned a verdict for the P, for 500 pounds. This was upheld on appeal.

General Principles:
1.   Does it matter that the D was unaware of the extrinsic facts by virtue of which the word he or she publishes may acquire a defamatory meaning (by innuendo)?  NO
2.   Does it matter that the D did not intend to defame the P, by virtue of those extrinsic facts? – Defamation is a strict liability tort, intention not relevant
3.   Can a defamatory imputation (by way of innuendo) arise from a belief that it is false? Or must the extrinsic facts that provide the basis for the innuendo always be true? This point arises from the Mirror Newspaper case. The extrinsic facts have to be true. You cannot have false extrinsic facts. For example, in the case of the Pauline Pantsdown case, you cannot just make up that potato means anal sex.
4.   Do not be concerned about the size of the audience either – except for determining the quantum of the damages

4. Reports of police activities, charges and rumours

Imputations arising from a statement that P has been charged with a criminal offence. Contrast:
1.   A bare statement that the P has been charged, but not in such a way as to also carry the imputation that Police have reasonable grounds for suspecting that an offence had been committed (cf views of Mason J, and Gibbs CJ and Brennan J, in Mirror Newspapers v Harrison on this point)
2.   A statement that the P has been charged, in such a way as to also carry the imputation that Police had reasonable grounds for suspecting the offence.
3.   A statement that the P has been charged, in such a way as to also carry the imputation that the P is guilty.

Mirror Newspaper v Harrison (1982) 56 ALJR 808

NOTE A mere statement that a person has been arrested and has been charged with a criminal offence is incapable of bearing the imputation that he is guilty of that offence.
FACTS: Article from Daily Mirror reporting on the arrest of three men over the bashing of a State Labor MP, Peter Baldwin. There was a photo of the P (with part of his face blocked out). Further ‘colour’ was given to the publication by the fact that the article reported that the arrests followed a month of ‘intensive investigation by a special squad of detectives’, working ‘around the clock to fulfill a directive from the Deputy Premier Mr. Ferguson, that the culprits be found”. Harrison claims the article carries the imputation that he is guilty of the bashing.
IMPUTATIONS:
i)   That the P was directly or indirectly responsible for the vicious bashing of Mr. Peter Baldwin; and
ii)   That the P was guilty of a crime in connection with that bashing.
Hunt J at first instance held these were not capable of arising, so the P’s appealed.
HELD: HC took the view that it is too extreme to impute the second alternative that they are guilty, when all they said, was that X had been charged with a crime. They also said the first imputation is not capable of arising. The reporting of the fact that Harrison had been arrested did not impute that he was guilty.
The ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until proven guilty. He knows that the question of guilt is to be determined by the judge or jury, and that not infrequently, the person charged is acquitted.
Mason J: A statement that a person has been arrested and charged with a criminal offence is capable of bearing the imputation that the police officer who made the charge had reasonable cause to suspect him of having committed the offence. This is the proposition which brings about the defamatory quality of the matter complained of. Gibbs CJ and Brennan J: Did not necessarily believe this as capable of arising, but expressly leaving the question open.
They dismissed the appeal and restored Hunt J’s decision.

Sergi v ABC [1983] 2 NSWLR 669
FACTS: TV programme: “Nationwide” (telecast of words and pictures) described a front-page article from the Daily Telegraph which published photos of 5 Italian men (including the P), reported to have been nominated by the findings of the Woodward Royal Commission as “quite influential members” of a murderous, secret society masterminding an extensive drug network. The televised pictures included the photos taken from the Telegraph. Above the pictures were the words [from the newspaper] “responsible for the disappearance and murder of Donald Mackay”. Underneath them were the names of the men (including the P). In block letters under the names were the words “MURDER INC”.
The telecast went on to note that, “a week later an acutely embarrassed Daily Telegraph had to admit that one of the men whose photograph appeared above the Murder Inc. headline had not been named by Woodward at all”. A picture of the plaintiff (showing his upper face, but not his lower jaw or name) was televised, together with the word “Apology” above it.
IMPUTATIONS:
a)   The P is responsible for the disappearance and murder of Donald Mackay
b)   The plaintiff was an influential member of a murderous, secret society masterminding an extensive drug network”
c)   The plaintiff had recent convictions for growing marijuana
d)   The plaintiff is one of the culprits in respect of the presumed murder of Donald Mackay
e)   The plaintiff was a member of Murder Inc
f)   The plaintiff had been accused of being responsible for the disappearance and murder of Donald Mackay
g)   The plaintiff had been accused of being connected with a murderous, secret society masterminding an extensive drug network from Griffith
h)   The plaintiff had been accused before the Royal Commission of being a culprit in connection with the presumed murder of Donald Mackay.
ISSUE: Whether the imputations pleaded by the plaintiff should have been put to the jury (on the basis that they were reasonably capable of arising).
HELD: Imputations (a) to (e) and (h) were allowed to go through, but not (c), (f), (g). Below is a guide to the most important issues for our purposes:
“Bane and antidote”: whether the re-publication of the apology was sufficient to obliterate the imputations arising from the re-publication of the original imputations. The antidote, the apology in the newspaper, did not make it “blindingly obvious” that they identified the wrong person – therefore the question goes to the jury to determine whether the antidote has overcome the bane.
Glass J: Provided the antidote can reasonably be considered as not obliterating the imputations, issue will go to the jury.
Hutley J: The bane and antidote theory is merely a way of stating that the whole publication must be considered, not a segment of it. The mere making of an apology may not be sufficient; it is a question for the jury whether the apology is so complete as to expunge the defamation and for the judge to determine whether the evidence is so strong as to make a decision to the contrary by a properly instructed jury as perverse.

Can imputations be pleaded in a passive voice?
•   Hutley JA noted that Hunt J refused (f), (g) and (h) because they were pleaded in a passive voice. However, Hutley JA said this is not a valid reason because the pleader can choose his own way to formulate the imputation – there are no “formulas” for the way an imputation is set out.
•   Priestley JA: Although it is sometimes more effective to couch the imputations in an active voice, an imputation couched in a passive voice is not impossible.
•   All judges pointed out that in Youssoupoff, where the P was in no way at fault, it was the passive verb that captured the intended meaning best. An imputation that the P in that case had been “ravished by Rasputin” was held to be defamatory, the form of imputation attracting no criticism. It can still be defamatory if the imputation just states in a passive voice that something happened to the P.
•   Glass JA said an imputation couched in the passive voice is unobjectionable in form provided it is clearly expressed and involves no duplication (SC Rules Pt 67, r 11 says each imputation pleaded must differ in substance)

Why were imputations (f) and (g) not permitted to go to the jury?
•   Imputations (f), (g) and (h) did not try to prove that there was any reasonable basis for the accusations made. Glass JA noted the normally, D could justify the P had indeed been so accused, but could not here, since no accusations had been leveled at the plaintiff – only at another person bearing his name.
•   Glass JA: When a passive voice is used in connection with accusations, need to specify the accuser. The source of the accuser is relevant to the capacity for the imputation to disparage the plaintiff in the eyes of ordinary folk. Imputations (g) and (h) were defective and rejected because they did not specify accuser. However, (h) identified the forum (Royal Commission) in which the accusation was brought was thus was allowed.
Main Points from Sergi Summarised

Statement says: “A has been charged with a crime”
Possible imputation arising:
•   That X is guilty
•   Such an imputation will (clearly) be defamatory, and to justify it, guilt must be proved: see Sergi per Glass JA
Possible imputation arising:
•   There are reasonable grounds for suspicion of X’s guilt
•   An imputation that the police’s suspicion is reasonably grounded is clearly defamatory. To prove justification, the D would need to call the police officer in question.
If no imputation arises:
•   In Sergi, Glass JA assumes that the statement above need not necessarily carry the meaning that police have a reasonably grounded suspicion of A’s guilt.
•   He concludes that such a statement can nevertheless be defamatory.
•   Such a statement can be justified by proving that the charge was brought (provided public interest or qualified privilege proved: DA s15(2)). But there will be no public interest if the P is mistakenly identified (so that the D can't prove substantial truth).

5. Defamatory Imputations: Assessing the Defamatory Quality of Imputations

Once the distinct imputations are identified, the next question is whether they carry the defamatory meaning.
What does it mean for something to be defamatory?
•   Not defamation if it is mere vulgar abuse
•   E.g. Someone wrote on the fence of a judge “The pooheads live here” – struck out for being mere vulgar abuse
“At common law, an imputation likely to injure a person in his or her profession or trade but not tending to cause either reputational damage or social exclusion is not actionable as defamation though it may give rise to an action for injurious falsehood” (Gillooly).

Overview at Common Law: Matter is defamatory if it satisfies one of the following tests:

1. Hatred, contempt & ridicule
•   Parmiter v Coupland (1840) 151 ER 340: “A publication, without justification or lawful excuse, which is calculated to injure the reputation of another by exposing him to hatred, contempt, or ridicule, is a libel”.

2. “Lowering the estimation”
•   Sim v Stretch [1936] 1 KB 818: “[W]ould the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?”
•   Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR: “anything which is likely to cause ordinary decent folk in the community, taken in general, to think the less of him”.
•   Mirror Newspapers v World Hosts Pty Ltd (1979) 141 CLR 632 per Mason & Jacobs JJ: “…a statement about the plaintiff of a kind likely to lead the recipient as an ordinary person to think the less of him”.

3. “Shun and avoid”
•   Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581, per Slesser LJ:
“not only is the matter defamatory if it brings the plaintiff into hatred, ridicule, or contempt by reason of some moral discredit on her part, but also if it tends to make the plaintiff be shunned and avoided and that without any moral discredit on her part. It is for that reason that persons who have been alleged to have been insane, or to be suffering from certain diseases, and other cases where no direct moral responsibility could be placed upon them have been held to be entitled to bring an action to protect their reputation”

4. The issue of “disparagement”
•   Note that under the first two headings, an element of “disparagement” (moral blameworthiness) is required: Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449
•   However, it is not required if you are claiming defamation under the heading of “shun and avoid”: Sun-Gravure Pty Ltd v Middle East Airlines SAL (1975) 134 CLR 1. Mason J noted at 24, the defamatory character of some imputations rests not on injury to reputation (there being no disparagement, or moral discredit), but on their tendency to exclude the plaintiff from society.
•   Nor is it required for the heading of “ridiculous light”. Here, the imputation “displays the plaintiff in a ridiculous light, notwithstanding the absence of any moral blame on his part”: Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449, at 453.

What is the test for “defamatoriness” in the Code States?
Defamation Act 1957 (Tas) s 5(1), and Defamation Act 1889 (Qld), s4(1)
Any imputation concerning any person or member of his family, whether that member of his family is living or dead, by which:
   (a) The reputation of that person is likely to be injured;
   (b) That person is likely to be injured in his profession or trade; or
   (c) Other persons are likely to be induced to shun, avoid, ridicule, or despise that person
is defamatory.
Note that although this looks like the CL test, note (b) does not apply in NSW because that would fall under the heading of injurious falsehood. Also, under code states, the “lowering the estimation” test does not require the element of disparagement: Sungravure

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“Lowering the Estimation”:

Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171
FACTS: This case was dealt with under the defence of fair comment. However, it was about a critic who criticised the P’s book.
HELD: In NSW it is illegal to publish anything about a person that is likely to cause ordinary decent folk in the community, taken in general, to think the less of him. To this rule there is the general exception of public interest (but it can not be unfair or malicious).
A person exposes himself to comment if he invites the acceptance or approval by the public of his literary or artistic productions. Here there was ample material to warrant the conclusion that the matter complained of is defamatory as being likely to lead anyone who read it to think the less of the P as a writer; but it is clearly only criticism, that is, comment, and there is neither intrinsic nor extrinsic evidence of unfairness or malice. For example, the statement “the book averages a laugh a page” is a mere expression of opinion. Thus, in this case, although there was defamation, the defence of fair comment was upheld.

John Fairfax & Sons Ltd v Punch (1980) 31 ALR 624
FACTS: Imputations that the leader of the country party had lost the confidence of his party.
HELD: The reason why this is defamatory is that it casts dispersions on someone’s capacity to do the job, and is disparaging. Unless you have that extra element of disparagement, than it is not really defamation. The lowering the estimation test requires disparagement.
Per Brennan J: “injury to a plaintiff’s profession or trade without disparagement or reputation does not suffice to make an imputation defamatory…[but] An imputation that a parliamentary leader has lost the confidence or support of a significant number of party followers thus disparages his reputation as a leader… [and injures him in his profession]”.
Hence:
   • “Disparagement” required under the “lowering the estimation” test.
   • Cf the position in the Code States.

Drummond-Jackson v British Medical Association [1977] 1 All ER 1904
FACTS: Article suggested bad dentistry caused some deaths.
HELD: There is a difference between lawful and unlawful (defamatory) criticism:
“Libel is personal and subjective. It is a lowering of the man himself in the eyes of right-thinking people generally. It is actionable without more ado. Lawful criticism is impersonal and objective. It is criticism of goods, of a design, a system, or a technique. It points out defects and deficiencies in them without attacking the man himself. It is not actionable unless proved to be both false and malicious” [in which case there would be an action for malicious falsehood] per Lord Denning

“Shun and Avoid” formulation

Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581
FACTS: A Russian Princess sued MGM in relation to the English screening of the movie “Rasputin, the Mad Monk”. She successfully claimed the film, which purported to deal with real events, suggested she had been raped by Rasputin. MGM appealed, saying the allegation could bring no moral discredit to her, being something beyond her control.
HELD: The Court rejected this argument. Drawing by analogy on cases where it had been held to be defamatory to allege that a person was insane or was suffering from a disease, Slessor LJ said: “not only is the matter defamatory if it brings the P into hatred, ridicule, or contempt by reason of some moral discredit on her part, but also if it tends to make the plaintiff be shunned and avoided and that without any moral discredit on her part”.
•   Thus, disparagement is not an element in the “shun and avoid” test.
•   Because the imputation of being raped does not really fall into either of the two tests, the court came up with this “shun and avoid” test.
•   This has since been recognised as a separate category of defamatory matter, where the test of the defamatory character of an imputation rests on its ‘tendency to exclude the P from society rather than on its capacity to work injury to reputation: Sungravure Pty Ltd v Middle East Airlines

The issue of “disparagement”

Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449
FACTS: Boyd was a rugby league player and Mirror Newspaper called him fat and slow, and predictable and that he “Waddles onto the field”!
IMPUTATIONS: He pleaded 3, according to the natural and ordinary meaning of the article:
(1)   That the P was so fat and slow that he could not properly play in his position as a second row forward in first grade rugby league football;
(2)   That the P was so fat as to appear ridiculous as he came onto the field to play a first grade rugby league match;
(3)   That the P had so allowed his physical condition to degenerate that he was a hopeless second row forward in first grade rugby league.
HELD: Court emphasised the CL principle that must to be an element of “disparagement” – i.e. moral blameworthiness, and that it is your fault. There are 2 exceptions at CL:
1.   “Shun and avoid”
•   For example, by attributing to him that he is insane: Morgan v Lingen, or that she has been raped: Youssopoff
2.   “Ridiculous Light”
•   Where the imputation “displays the Plaintiff in a ridiculous light, notwithstanding the absence of any moral blame on his part”
•   “Ridiculous” means deserving to be laughed at or absurd
P made his claim on the basis of ridiculous light, relying upon the statements such as he “waddled onto the field”, coupled with the incredulity expressed by the author that it was the P that he saw.
It was questionable whether an ordinary reasonable reader would have read the opinion of the P’s performance as favourable. However this is a matter for the jury. Hunt J thought the article was capable of being disparaging. Thus imputation (2) was capable of arising and could go to jury.
Imputation (3) was argued on the basis of “lowering the estimation”. Hunt J held it was capable of meaning that the P has been at fault for allowing his physical condition to degenerate. D tried to claim bane created by the criticism was outweighed by the antidote applied by the author’s suggestion he was capable of playing in first grade in the front row. Judge rejected this. D also claimed (3) should have been restricted to the P’s performance in the particular game (not in general terms). To this, Hunt J said in ordinary cases a description of one specific incident is incapable of supporting an imputation expressed in terms of general application. However, the criticism here is not restricted to the P’s performance during that game. It says his performance was bad because he lacked condition – which doesn’t just come and go. Thus (3) goes to jury
However, imputation (1) was not capable of arising. P claims it makes people think the less of him for being in that condition. There is nothing in the description of being fat or slow, even where the object being described as a first grade footballer, which would tend to make people shun or avoid him; nor is it capable of displaying him in a ridiculous light. It was not disparaging personally and therefore incapable of defaming the P. Although he may have got it under “ridiculous light” – he did not plead it this way and so failed on that imputation.

Categories where disparagement is not necessary:

“shun and avoid”

Sun-Gravure Pty Ltd v Middle East Airlines Airliban S.A.L (1975) 134 CLR 1

“ridiculous light”

Ettingshausen v Australian Consolidated Press Ltd (1991)
FACTS: Concerns a photo in a magazine of Ettingshausen, a well-known Rugby League footballer, in the shower with team-mates. Hunt J said “The photograph is grainy in quality, and the scene appears to have been lit only from the top and behind. Nevertheless, below the printing there is a shape between the P’s legs which (despite the defendant’s submission to the contrary), is certainly capable of being interpreted as his penis”. The photo was coupled with an article that played up the suggestiveness of the photo. Sued for defamation
IMPUTATIONS: Revised imputations pleaded were:
a)   The P deliberately permitted a photograph to be taken of him with his genitals exposed for the purposes of reproduction with a widespread readership.
b)   The P is a person whose genitals have been exposed to the readers of the defendant’s magazine ‘HQ’, a publication with a widespread readership.
Is intended as a back up imputation if (a) fails. Note these imputations do not suggest any fault element, just that his genitals were exposed to widespread readership.
HELD: This imputation went to the jury. Hunt J held that persons of reasonable intelligence may differ as to whether imputation (a) would have been conveyed to the ordinary reasonable reader and therefore the issue is for the jury.
Imputation (b) does not assert any moral blame for the exposure upon the P itself. It is well accepted law that, to be defamatory, the imputation need not assert blame if it nevertheless tends to make people shun and avoid him. P argued that as a result of the exposure of his genitals, he has been held up to ridicule. He referred to the principle in Burton v Crowell Pub Co 82 F (2d) 154 (1936) which says if the matter complained of was calculated to expose the P to more than trivial ridicule, it was prima facie actionable, even though it asserted nothing about the P himself and notwithstanding the impression which it conveyed (that the P in that case had exposed his penis) was obviously an optical illusion. The caricature in that case affected his reputation. Applying this principle, he held (b) is capable of arising.

Random House Australia Pty Ltd v Abbott (1999) 167 ALR 224
HELD: Cited John Fairfax v Punch that it is not necessary that there should be an imputation of immoral or disgraceful conduct. The mere imputation of lack of ability to discharge the duties of the office is sufficient. The substantive legal issue here may be expressed as whether the material was defamatory of the Ps and that it was to his or he “discredit…tended to lower him in the estimation of others…to expose him to hatred, contempt or ridicule, or to injure his reputation in his trade or profession”.
“…such a statement would cast aspersions upon the private characters of Mr Abbott and Costello, and would also disparage their professional and official reputations. It would discredit them and lower them in the estimation of others, and expose them to contempt or ridicule”.

Berkoff v Burchill [1996] 4 All ER 1008
FACTS: In the course of a newspaper review about film directors, the defendant wrote “film directors, from Hitchcock to Berkoff, are notoriously hideous-looking people”. Later, in another review of a film called ‘the Creature’: “The Creature is made as a vessel for Waldman’s brain, and rejected in disgust when it comes out scarred and primeval. It’s a very new look for the Creature – no bolts in the neck or flat-top hairdo – and I think it works; it’s a lot like Stephen Berkoff, only marginally better-looking”. P claimed articles were understood to mean ‘B was “hideously ugly”’
HELD: The court should exercise great caution before concluding that words are incapable of a defamatory meaning.
“It will be seen from this collection of definitions that words may be defamatory, even though they neither impute disgraceful conduct to the plaintiff nor any lack of skill or efficiency in the conduct of his trade or business or professional activity, if they hold him up to contempt, scorn or ridicule or tend to exclude him from society. [However] insults which do not diminish a man’s standing among other people do not found an action for [defamation]. The exact borderline may often be difficult to define” (p1013 per Neill LJ).
“In the present case it would, in my view, be open to a jury to conclude that in the context the remarks about Mr. Berkoff gave the impression that he was not merely physically unattractive in appearance but actually repulsive. It seems to me that to say this of someone in the public eye who makes his living, in part at least, as an actor, is capable of lowering his standing in the estimation of the public and of making him an object of ridicule” (p 1018 per Neill LJ).

Aqua Vital Australia v Swan Television and Radio Broadcasters Pty Ltd (1995) Aust Torts Reports 81-364
FACTS: “A Current Affair” had made various allegations about Aqua Vital.
IMPUTATIONS:
a) The plaintiffs failed to take adequate steps to ensure that the bottled water they sold to the public was fit for human consumption.
b) Ps sold to public bottled water as Aqua Vital Spring Water which “was likely to endanger the health of consumers”.
c) Ps sold bottled water “which was a risk to the health of consumers”.
HELD: Language of disparagement of goods or the quality of goods, (here about the quality of the water) can be defamatory if it says something about the maker of the product. Imputation (b) and (c) did not satisfy this. There was no added meaning to the statement in question. Note that if this had been in the code states, this would have been enough. Para (a) was defamatory, especially when the story is sensational, you can show there was a lack of care that the water was not properly manufactured. Since disparagement is not necessary for the ridicule test, you can defame someone via satire

Burton v Cowell Publishing Co 82 F .2d 154 (1936)
FACTS: P agreed to take photos for a cigarette ad. A girth (belt) was suspended from the saddle but looked like it was attached to him. This made it look like a grotesque appendage to his body.
HELD: Actionable because it exposed the P to ridicule. If the ridicule is more than trivial, than it can be actionable, despite the fact that it asserted nothing about the P himself and notwithstanding it was obviously an optical illusion

Contested Values, Sectional Attitudes
How does defamation deal with discordant attitudes?

Hepburn v TCN Channel Nine Pty Ltd [1995] 2 AC
FACTS: P did not like the connotations associated with being called an abortionist
HELD: A man can justly complain that words, which lower him in the estimation of an appreciable and reputable section of the community are defamatory even where the words lower him in the estimation of some, and exalt him to hero status to others. The imputation was held to be capable of arising and capable of being defamatory.

Is it defamatory to call someone a homosexual?

Rivkin v Amalgamated Television Services Pty Ltd [2001] NSWSC 432
FACTS: The matter complained of concerned a broadcast on the Channel 7 television program "Witness", in its natural and ordinary meaning contained the following imputations.
IMPUTATIONS:
a)   That the plaintiff was a person criminally liable in respect of the murder of Caroline Byrne.
b)   That the plaintiff had behaved in such a way as to warrant the well deserved suspicion that he was a person criminally liable in respect of the murder of Caroline Byrne.
c)   That the plaintiff had engaged in homosexual intercourse with Gordon Wood.
d)   That the police had reason to suspect that the plaintiff had engaged in homosexual intercourse with Gordon Wood.
HELD: Bell J said the allegations are not defamatory. She reached her view based on the ordinary reader of society. This case went to the HC.

John Fairfax Publications v Rivkin [2003] HCA 50
HELD: Kirby J said in relation to the homosexual intercourse imputations that in most circumstances it ought not to be the case in Australia that to publish a statement that one adult was involved in consenting, private homosexual activity with another adult involves a defamatory imputation. But whether it does or does not harm a person’s reputation to publish such an imputation is related to time, personality and circumstance. Now, in most circumstances, it is a matter of complete indifference. At least for people who treat their sexuality as private or secret, or people who have presented themselves as having a different sexual orientation, such an imputation could, depending on the circumstances, still be defamatory. He thought the imputation did arise, but what the judge thinks is irrelevant.
In this case, the suggestion of homosexual activity between Rivkin and Wood went beyond an imputation of marital dishonesty or promiscuity on R’s part. In the context, such a sexual liaison, inevitably introduced into the matter complained of, as it would be read by the ordinary reasonable reader, the imputation is pleaded.

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Continued

6. Satire and Parody

•   Satire stings! This is the whole point of satire – It annoys people
•   Actionable defamation or permissible satire?
•   Example: “Pauline Pantsdown”: Lyrics, explanatory documents and Pauline’s Statement of Claim -What do these lyrics mean?

Simon Hunt (the writer of the song) said:
•   “My satirical piece ‘I’m a Back Door Man’ involves the construction of a ‘militant homosexual’ character, Pauline Pantsdown, from digitally sampled and re-arranged words spoken by politician Pauline Hanson
•   Although Pantsdown’s text rarely delves into Hanson’s best known subject areas, [his] style of argument and use of language are directly based on Hanson’s reasoning and linguistics in relation to those subjects.
•   This is a satirical strategy – based on the “impossibility” of subject-bound satire in relation to public figures whose attributed original statements are of an extreme (unable to be exaggerated) and illogical (unable to be made absurd) nature”
•   Under this ‘Weimer’ strategy: Satire works when you highlight the inconsistencies of what the person has said, which on their own are so illogical that you can’t even make it more dumb
•   Relevance of satirical strategy to Hanson: E.g. she presented separate reasons for wanting to deny immigration to Japanese business migrants, grandmothers of Vietnamese-Australians coming in on the Family Reunion program etc. Noticing the “colour connection”, the satirist would extend this by lumping all “Asians” together with no distinction made between many different countries, cultures and reasons for immigration. But Hanson has already taken that punchline, and the satirist has nowhere left to go
•   The song’s application of satirical strategy: The song’s thematic focus on sexuality, in particular homosexuality stems from 2 of Hanson’s original statements:
o   “I do not think that homosexuals should be allowed to have children”
o   “I don’t like it. Because it’s promoting something, OK, that is not natural
•   He notes that he is gay and: “the relationship between myself and Pauline is as follows: in a clearly satirical and manipulated context, I am attaching views to her voice that she holds (and publicly expresses) in “actuality” about me. She makes the offensive statements, and I joke about these statements by turning them back on her”
•   It also highlighted her illogical statements such as “Asians are, always have been and always will be part of Australia” and “We need to bring the balance back (sic) away from Asian immigration” with – “I like trees, I like shrubs and plants…but I’ve put the fence up so they cant get in!”
•   He argued the absurdity of the song’s statements were such that no-one in their right mind would believe them as actually true

Pauline Hanson’s statement:
•   She argued the material was highly defamatory, against public values and social morality
•   An injunction was given against the playing of this song

There are 4 ways to interpret the lyrics:
•   Treat as just as abuse – This is what the ABC argued
•   Take the imputations literally – this is what Pauline Hanson did. In her statement of claim she argued various imputations including:
o   The P is proud to be a homosexual (gay) activist
o   The P is proud to be a prostitute
o   The P is proud to engage in unnatural sexual practices including anal sex with members of the KKK
o   The P is a potato (a male engaged anal sex with another male)
o   Understand the meaning of the lyrics as being so over the top that those literal imputations were not in fact conveyed – the over inflated language doesn’t convey the literal meaning argued. In context, it was clear that the literal imputations couldn’t be taken seriously
o   The basis that Simon Hunt meant for it to be taken at – A satirical piece. Hunt believes that at the time he was writing backdoor man, Pauline Hanson was popular due to rise of One Nation. When you investigate the lyrics further, there was a genuine satirical strategy that underlines the song.
•   If you accept the satirical strategy, the imputations might be:
o   Hanson is a racist
o   Is intolerant person
o   Is an incoherent person
•   These were the implied satirical meanings. However, these meanings were not pleaded by Pauline Hanson – She only pleaded the literal meaning

Hanson v ABC, unreported, Qld Court of Appeal, (28 Sept 1998)
FACTS: Hunt (Pauline Pantsdown) wrote song “I’m a Backdoor Man”, featuring Hanson’s voice and was broadcast all over JJJ radio. At the time of broadcast she was very well known as a controversial political figure. Pauline issued a writ against Hunt claiming damages for defamation. Prior to the writ he took out the lines in the original song: “You must come out and be one of us. As long as children come across, I’m a happy person” because it was ‘too sensitive’. Hunt argued it was mere vulgar abuse and not defamatory. He also noted how the radio announcers stated before broadcasting it that: “the song was satirical and was not to be taken seriously”. Pauline sought an interlocutory injunction
IMPUTATIONS: Generally she pleaded literal imputations that she is a homosexual, a prostitute, involved in unnatural sex practices, associated with the KKK, a man and/or transvestite and involved in or party to sexual activities with children.
ISSUE: The question is whether there was ridicule evident in the song?
HELD: Court said the relevant law in QLD was that in relation the granting of an interlocutory injunction to restrain defamation: (Shiel v Transmedia Production [1987] 1 Qld R 199)
The power should be exercised with great caution.
If there is any room for debate as to whether the statements complained of are defamatory the injunction will be refused. It is only where the position is so clear that in the Judge’s view a subsequent finding by a jury to the contrary would be set aside as unreasonable that the injunction will go.
If on the evidence the judge thinks there is a possibility the D will succeed in a defence or that the P will get damages, then the injunction should be refused

Judge held that in terms of Shiel the material was patently defamatory. “One or more of these imputations do arise and they are plainly defamatory for exposing the respondent to ridicule and contempt”
Regarding the disclaimer the judge noted that often the listener may only hear the song and not the disclaimer. Importantly, a broadcaster cannot convert grossly defamatory into acceptable material simply by pleading it should not be “taken seriously”. Certainly that was not achieved here.
Held the trial judge was correct in granting interlocutory injunction

Note: the test for Injunction is different in defamation
•   When you get an injunction you are suppressing speech. It is a two step process, arising from the US Cyanamede case. Courts require a high level of proof before they grant an injunction

Test for Injunction
The things you need to show for defamation injunctions are:
•   The imputations so obviously or clearly arise and are defamatory in nature, and that if the jury were to decide otherwise, the court would overturn it as unreasonable
•   To get an injunction the defences need to be so unsustainable that they will fail

The Hon Tony Fitzgerald AC, “Telling the Truth, Laughing”, Communications Update December 1998 at p14
“Satirical humour is extremely vulnerable and involves a degree of legal risk, using distorted fact as a façade for criticism intended to cause discomfort to the target. The law needs to develop sophisticated response which do unduly inhibit the true usage which readers, listeners and viewers have the wit to comprehend”

Brander v Ryan Messenger Press Pty Ltd (2001) Aust Torts Reports 81-592
FACTS: Media making fun of a person’s personal characteristics –can be seen as a piece of satire.
The P was at all material times the Chairman of a political party known as Australian National Action. First D was the editor of newspapers entitled “The Messenger” circulating in Adelaide and the second D was the publisher. Published article called “It’s Little Mikey and the big bad racists” containing various comments: e.g. “It is hard to imagine how someone can piddle higher than everyone else if you sit down to take a pee” and “was he an annoying little brat as a kid or is he just an annoying little brat now?” D argued defence of truth, fair comment on the matter of public interest and qualified privilege (a communication made to the public on govt or political matter).
IMPUTATIONS: He pleaded 11 including:
1) The P was simply attn seeking and holds no genuine views in relation to the immigration debate and that his political actions lack integrity
2) The P is a racist AND
4) The P displays female like behaviour and therefore the P is not a man
The Trial judge thought the following two imputations arose:
1.   Brander was motivated by juvenile attention seeking
2.   He had feminine behaviours (sitting down when peeing)
HELD: In considering what imputations arise, the ordinary reader would have regard to the whole of the publication and the impression created by the publication and would not confine themselves to the meaning of each word within the publication. Thus need to consider the article as a whole.
Although the issue has not been determined at the HC, a publication may be defamatory of the P even where it imputes no moral discredit or blameworthiness to the P, if the article holds the P up to ridicule or contempt (Boyd).
It may be inferred from this article that the D’s were intending to hold the P up to ridicule. Court said they could have argued a number of imputations claiming he had been held up to ridicule, but noted that they did not do this. Rather they based their imputations on literal meaning of the words
Regarding the imputation of female-like behaviour, he held the imputation did not arise when read in the context of the whole article. Held none of the imputations arose except for the following:
1.   The P did not hold his political views sincerely
2.   He was motivated by juvenile attention seeking
That being the case the question is whether the publication is protected by qualified privilege?
He held the publication was of govt or political matter. It was published in a form which may be described as satirical and which invited the reader to hold the P up to ridicule. Nevertheless in the circumstances of the case the subject matter of the article was govt or political matter.
Since the Lange decision, there is an extended defence of qualified privilege. In order to take the benefit of the Lange decision, your speech or imputations must be reasonable in the circumstances. “In my opinion, the D’s did establish in the evidence of Mr. Ryan, that they had reasonable grounds to believe the two imputations which I have found to arise on the natural and ordinary meaning of the words were true and certainly established that they did not believe the imputations were untrue…[His] evidence also established that proper steps had been taken to verify the accuracy of the material in the article…”
“In my opinion the defence of qualified privilege has not been defeated by the P establishing the D’s were actuated by malice.

How can the law better respond to satire?
•   Argue they are so ridiculous that the imputations do not arise
•   Ignore the usual rule, and to have regard to the writer’s intentions to determine what meanings arise
•   More relaxed in accepting one or other of the defences
•   Courts building a more robust capacity to accept satire

Clarification: it is not necessary that ordinary people actually believe the imputation. Whether people believe the imputations are true or not go to damages. If there is ridicule, there is a likely case of defamation.

Second Requirement - OF AND CONCERNING THE PLAINTIFF

7. Identification of the plaintiff

▪ Identified by ordinary and reasonable members of the community.

▪ It does not matter whether the publisher intended to refer to the plaintiff or not. It does not even matter whether he knew of the plaintiff’s existence. And it does not matter that he did not know or could not have known the facts that caused the readers with special knowledge to connect the statement with the plaintiff. Indeed the damage done to the plaintiff by the publication may be of a kind that the publisher could not have foreseen. That may be out of line with the ordinary rule limiting damage for which a tortfeasor is liable: Morgan v Odhams Press Ltd [1971]

▪ “A person charged with libel cannot defend himself by showing that he intended in his own breast not to defame, or that he intended not to defame the plaintiff, if in fact he did both. He has none the less imputed something disgraceful and has none the less injured the plaintiff” Hulton v Jones [1910] AC 21 at 23.

Cases where the plaintiff is named:

Hulton v Jones [1910]
FACTS: Plaintiff had published a newspaper article describing the dodgy activities of a fictional character called Artimis Jones. Unfortunately, a real person, Artimis Jones, reads the article and sues for defamation.
Held: The question was whether any ordinary people would think that it was the real Artimis Jones.

Lee and Lee v Wilson (1934)
FACTS: Paper published some corruption allegations that had been made by a prisoner against a detective Lee. But there were three detective Lees. Two worked in the CIB; sued; and awarded 50 Pounds.

▪ Therefore, must be VERY specific when publishing information about a person. Must be careful to avoid ambiguity.

Cases where the plaintiff is NOT named:

▪ Situation of identification by innuendo.

▪ Sometimes identity of person may be achieved by notoriety, rather than any name being given. Within the ordinary reasonable knowledge of the reader – e.g. Prime Minister.

▪ If not referred to by name, but people with special knowledge can identify the plaintiff.

▪ Apart from situations where identity of person is notorious, if the matter does not refer to the plaintiff by name, then in order to defame an unnamed person, imputations would need to be published to people who had special knowledge which somehow enables them to identify the plaintiff.

Indirectly identified by words:

Consolidated Trust Co v Browne [1948]
FACTS: The defendants published a ‘circular’ critical of the owners of two blocks of flats. They accused the owners of producing “a set of rules which should make any former concentration camp inmate feel thoroughly at home”. The owners of the flats were not named. The plaintiffs sued for defamation and failed “because their identity was not a matter of general notoriety and they omitted to prove that the report was published to persons who would know who the owners were”: (see Mirror Newspapers Ltd v World Hosts Pty Ltd (1979)).

HELD: The identity was not a matter of notoriety. Could not show that ordinary reasonable recipient of the newsletter that plaintiffs was X and Y. Because identity was not notorious, claim failed.
Need to show that defamatory information published was sent to people with special knowledge allowing them to identify them. This was not so in this case, thus claimed failed. Needed to give evidence that some people recognised the plaintiffs as X.

Objective test: Whether publication was reasonably capable of being understood by ordinary and reasonable readers with that extrinsic knowledge in identifying the plaintiffs. Judge has quasi threshold role/preliminary role, whether something is capable of being identified by the plaintiff.

▪ “What has to be decided is whether it would have been unreasonable for a hypothetical sensible reader who knew the special facts proved to infer that this article referred to the plaintiff.” – Morgan v Odhams Press Ltd [1971] at p252 Materials

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Continued

Morgan v Odhams Press Ltd [1971]
FACTS: The plaintiff, Johnny Morgan, claimed libel after an article was published in the The Sun. The article published on 8 November, referred to a woman named Margo Murray who was to be a witness in a dog-doping scandal.
The article stated that M. “went into hiding yesterday after threats were made on her life. [M] left her lodgings in Elsham Road, Shepherds Bush, accompanied by 2 men…[M]…was kidnapped last week by members of the gang when they heard she had made a statement to the police. She was kept at a house in Finchley but was eventually allowed to leave”.
The plaintiff was not mentioned in the article. M had stayed voluntarily in the plaintiff’s flat from 26th October to 1st November. The plaintiff’s flat was at Cricklewood, 3 miles from Finchley but 1 mile from Finchley road. The plaintiff sued for libel, on the basis that the words in the article referred to him. At the trial, 6 men gave evidence that they had seen M with the plaintiff on 28th October, and subsequently the 8th November article about kidnapping etc referred to the plaintiff. Morgan relied on certain extrinsic evidence that would entitle an ordinary reader to understand that the article referred to him.
ISSUE: The question that arose in this case was not whether the words were defamatory – they plainly were, rather whether they were capable of referring to the plaintiff and whether they did so refer to him. In determining whether the words alleged to be defamatory did refer to the plaintiff, the intent of the publisher, and whether the publisher knew of the plaintiff’s existence, is of no relevance. The House of Lords also considered whether the trial judge should have allowed the case to go to the jury on the question of identification.
HELD: Identification by innuendo. Newspaper story was published to people who had seen Margo at the same time the paper alleged that she had been kidnapped. Note that one of the witnesses who had seen Margo and the plaintiff, did not believe the article (defamatory imputations, although they did identify the this did NOT mean that the identification was not made outàplaintiff) merely because they didn’t believe.

Identified by pictures:

Nixon v Slater & Gordon (2000)
FACTS: The defendant published a booklet entitled “Medical malpractice claims…A litigation explosion?” The cover featured a photograph of the two plaintiff surgeons performing keyhole heart valve surgery on a patient, with a robed barrister examining the surgery. The photo was from the Age pictorial library, with digital enhancement to hide their identities. Although efforts were taken to disguise the surgeons’ identity, they were recognised by a number of the recipients.
IMPUTATIONS: The imputation that each plaintiff had so conducted himself as to be the subject of claims of medical malpractice. The applicants claimed that, in its ordinary and natural meaning, the medical malpractice booklet was defamatory of them, that:
(a)   Each of the applicants had engaged in medical malpractice
(b)   Each of the applicants has so conducted himself as to be the subject of claims of medic al malpractice
Alternatively,
(c)   Each of the applicants has sold his professional skill and reputation to a firm of solicitors for use in an advertising campaign to promote the services of that firm in medical malpractice litigation.
(d)   Each of the applicants have allowed his professional skill and reputation to be used by a firm of solicitors in an advertising campaign to promote the services of that firm in medical malpractice litigation
(e)   Each of the applicants has so lacked impartial professional judgment that he allowed his professional skill and reputation to be used in an advertising campaign for the promotion of services of a firm of solicitors engaged in medical malpractice litigation on behalf of aggrieved plaintiffs.
HELD: Imputations argued were that: each plaintiff had so conducted themselves to be subject to claims for medical malpractice.
The court held that the imputation could reasonably convey to a member of the medical profession that Slater and Gordon were involved in medical malpractice. The picture was enclosed and sent to medical practitioners in Victoria. Thus the test had to be adapted to the ordinary, reasonable member of the Victorian medical community. Imputation could reasonably arise when the hypothetically member of the medical profession saw this cover. Evidence is not admissible to show how various witnesses did understand the book.

Note: The question is not whether anyone did identify the applicants, but rather, whether persons who are acquainted with them could identify them, from the publication.

Barbaro v Amalgamated Television Services (1985)
FACTS: Television broadcast. The plaintiff was interviewed by Mike Willessee.
NB: The plaintiff’s name was Dominic Barbaro, not Dominic Sergi.
Reporter: We are looking for Dominic
Plaintiff: Yes, I am Dominic
Reporter: Dominic Sergi?
Plaintiff: Yes, what do you want?
Reporter: You are the one that was in the Royal Commission
HELD: It was necessary to prove identification by providing witnesses who saw the publication who identified him as B rather than Sergi. Drew a distinction between cases where identification arose from direct meaning and cases where an image was presented; no one could necessarily know the name of the person; because B was not so notorious that everyone would know who he was he had to adduce evidence that people saw the publication, saw him and then identified him as the person who was the subject of the publication. There is a difference between direct and indirect identification in relation to words, and then an overlaying principle of identification in relation to images.

Other Situations:

Identification and Groups:

▪ “Where the plaintiff is not named, the test which decides whether the words used refer to him is the question whether the words are such as would reasonably lead persons acquainted with the plaintiff to believe that he was the person referred to”: Knupffer v London Express Newspaper Ltd [1944] AC 116 at 119.

▪ The statement itself must refer specifically to the plaintiff, not just a generic group of people (i.e. all lawyers are lazy). Must be able to identify the plaintiff specifically, not just a generic group – unless can prove readers had extrinsic knowledge enabling the plaintiff to be identified.
•   Extrinsic knowledge must be proven. Does the statement about the group have a specific impact against the plaintiff?
•   Must firstly prove identification by innuendo, and then secondly, that the general term refers to a specific plaintiff. Where is the line drawn? That is, calling all New Zealander’s bogans contrasted with calling the Johnson’s kids stoners. Size of group and focus of comment relevant? Cut-off is unclear.

Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348
FACTS: M published a general discussion on the important issue of wheat theft but did not directly name S. One issue that arose as a threshold difficulty was whether S had been sufficiently identified by the article.
HELD: NSWCA applied House of Lords reasoning in Odhams case and found that witnesses could have identified her as being the person in question. The allegations were general in nature and consistent with Morgan v Odhams, in circumstances where general allegations are made the ordinary reasonable reader is granted latitude in terms of the implications drawn. It was not unreasonable for witnesses to identify S in this case.

Paschalidis v Yellow Corporation [2005] SASC 151
FACTS: Y was a courier company of which P was one. Y was accused of stealing Crisco hampers and had a falling out with his employer. P claimed he had delivered the hampers and left them at the delivery address without having been signed for. In the letter from Y to the managing director, there was a reference to difficulties with driver of Car 494. A difficulty in defamation proceedings was whether he was sufficiently identifiable.
HELD: It may be sufficient to establish identification by true innuendo. There was no such evidence here so the claim failed because P failed to prove identification. Also, in the case of a publication that is not widely disseminated, need to prove that someone who had knowledge of the publication and their extrinsic facts could be able to identify the individual. In this case P would have had to adduce evidence that the manager of C would have been able to identify P as the driver of the car.

Note: an intention to refer to a particular person is irrelevant in determining whether identification has been made out

Lee and Lee v Wilson (1934) 51 CLR 276
FACTS: A Victorian newspaper was covering proceedings before an inquiry; allegations were raised that someone called Detective Lee was suspected of being corrupt. The inquiry concerned a particular Lee with the Victorian Police. There was no rank of detective, but various police officers were known by that title. The actual Lee was never of a sufficient rank to be known as Detective; there were, however, a Sergeant Lee and a Snr Constable Lee who were both of sufficient rank. The report did not intend to refer to either of those people but they both instituted defamation proceedings. Publisher attempted to argue that there was no intention as a defence.
HELD: High Court felt the question was whether the matter was and concerning the plaintiff. Found that the two plaintiffs could reasonably have been identified as the person in the report regardless of the fact that the newspaper did not intend to name them. Publishers avoid liability for this issue by providing as many facts in the report as possible so therefore are able to manage risk.

Hulton v Jones [1910] AC 20
FACTS: Sunday Chronicle wrote an article; a Welsh barrister called J had the same name as the character in the article. Friends of J called him thinking the article referred to him. J instituted proceedings against H, the publisher of the SC, who defended the claim on the basis that the name intended to be fictitious and there was no intention on their part to refer to J.
Found: intention is irrelevant as to whether the plaintiff was identified and as to whether the material was published. It is what in fact a reasonable person could glean from the publication itself; the intention of the publisher is irrelevant. States that as between the plaintiff and the publisher, the publisher is better able to bear the risk because the plaintiff cannot take steps to protect him or herself from reputational damage.
•   In Hulton, the evidence was against their submissions because they adduced evidence as to never having heard of J, but J had worked as a freelance writer for the SC for two years.
•   Can defame a person if try to use a fictitious name; also can defame a person when referring to a completely separate person.

Group defamation
•   E.g. If attempt to defame a corporation, it may be that the board of directors may be personally defamed.
•   In each of the cases of standing to sue for defamation; the live issue of identification is raised; namely whether a cause of action of defamation against the collective group also give rise to personal defamation for every constituent member

Knuppfer v London Express Newspapers Ltd [1944] AC 116
FACTS: K was the head of the English branch of Young Russia. In July 1941, E published an editorial which accused YR of being a ‘quisling organisation’ and was in step with the Third Reich in preparation for the takeover of the Soviet Union and was identifying a relevant person to be in charge and these people were not to be trusted. K instituted publications against E and one issue was whether he was sufficiently identified by the publication.
HELD: Judgements evince a different approach to the issue of group defamation. Lord Porter and Viscount Simonds suggested that an exception to the general rule of identification should be presented and when dealing with group defamation, and in every case ask whether the publication is capable of implicating individuals. Consider size of the group; generality of the charge; and implications of the charge. Lord Aitken found that group defamation is not an exception and the underpinning principle in all issues of identification is the underlying principle of reasonableness. Therefore, the question should be whether an ordinary reasonable person reading the matter could have identified the plaintiff.
Both led to the same conclusion that K could not have been reasonably identified. The argument was that the fact that he was the president of YR didn’t give him any privilege; the judgments emphasizing the special test suggested that the proper group was not the 24 members in the UK, but the worldwide membership of YR. No weight was therefore ascribed to the fact that K was the president given the size of the group and the extravagance of the charge.

David Syme & Co v Canavan (1918) 25 CLR 234
Facts: Age carried a report about a rally held in November 1917 during 2nd Plebiscite on Conscription that a policeman described a service league in a derogatory fashion. One issue confronting C (a member of the service league) was whether he was sufficiently identified.
HELD: Notwithstanding the fact that C was the head of the organisation, it was unreasonable given the generality of the charge and the size the group to suggest that the allegations that all of the members of the group were ‘undesirable’ reflected on each of the members individually and C had not been sufficiently identified.

Healy v Askin [1974] 1 NSWLR 436
FACTS: H was the Labour candidate and A was the Liberal Premier of NSW. A organised an advertisement to be run during the campaign involving a woman who had come to Australia from Estonia; in the ad E stated that she came from an European country and her experience had convinced her that the Whitlam government was a ‘disguised Communist government’ and she urged party to vote against the party. H took exception to this and instituted defamation proceedings against A. One issue was whether a reasonable person could identify H as being adversely impacted as an individual. H argued that the relevant group against which the statement was made was a group entailing all candidates for the labour party seeking election in NSW. A argued (which was accepted by Lee J) that the publication referred to the Australian Labour Party and there was nothing that justified a reading down of that to the group running for election. The allegation was made against the ALP as a whole
HELD: Lee J: No reasonable person could say that it referred adversely on individual members of the party and given the generality of the statements a reasonable person wouldn’t assume that it reflected upon a particular member of the party.
•   During the 1990s, political communications have been the subject of significant litigation; in Healy the view was expressed that the ad would not be restrained on the fact that it was defamatory because the reputation of the ALP could not be vindicated by means of defamation. This was more the case when the ad occurred in an election campaign

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Cases where group defamation was made out:

Bjelke-Peterson v Warburton [1987] 2 Qd R 465
FACTS: B sued W, who was an opposition Labour politician arising out of several comments. The issue was whether the ministers were sufficiently identified.
HELD: Given the size of the Cabinet, the seriousness of the allegations, it was entirely possible for the allegations to reflect adversely on the individual ministers. Notwithstanding that none of the ministers were named, W was still held liable because a reasonable person would have been able to identify them.

Lloyd v David Syme & Co [1986] 1 AC 350
FACTS: L sued D for defamation arising out of an article that suggested that the West Indies Cricket team had deliberately thrown a match against Australia in the inaugural World Cricket fixture. L sued D for suggesting that he had fixed matches. One issue was that L was not named in the article, which referred to the WI cricket team. The threshold issue was whether L was sufficiently identified.
HELD: It was reasonable to identify L and the statement could stick particularly to L. on appeal, the reasoning was defended on the basis that the size of the team was small and the jury was entitled to have regard to the fact that in deciding the tactics, a captain played a significant role in deciding the strategies and it was possible to conclude reasonably that L had been particularly identified.

Proof of identification notes:

•   Andrews v John Fairfax & Sons [1980] 2 NSWLR 225:
FACTS: A gave evidence that people had spontaneously approached him and identified him as being the subject of the article in question. Expert witnesses also gave evidence that they read the articles and identified A as the subject but their evidence went further that they had been spontaneously approached by people who had asked them whether they had seen the articles. One of the arguments by F as to admission was the quality of the evidence was that of hearsay.
HELD: NSWCA: Evidence was rightly admitted to issue of identification; when pleading identification by true innuendo, it is not the case that the plaintiff has to be put to proof. If there are a handful of witnesses who can give evidence as to other conversations, then it is relevant.

•   Baltinos v Foreign Language Publications (1986) 6 NSWLR 85
FACTS: Greek Herald published an article in which they referred to a current affairs program to be broadcast on SBS that exhorted readers to tune in to the broadcast and suggested that if they did, they would see a story about dodgy migration agents. If readers followed that direction, they would have seen B named and allegations made about his migration agency business. One issue was that in its terms, the article published in G did not identify B directly.
HELD: Hunt J: Generally, while you can prove identification by true innuendo, must prove by reference to extrinsic facts, which cannot include the publication of prior or subsequent publication of defamatory matter. Suggested that there may be, and ought to be an exception that in this case, the terms of the publication was clear, as it directed its readers to a source, and if followed, they would be able to identify B fairly reasonably. Given that G had adopted this, they clearly intended that people would follow the lead; therefore in the circumstances B should be able to rely on the subsequent publication to prove identification.

Third Requirement: PUBLISHED BY THE DEFENDANT

8. Publication, repetition and republication

▪ The building blocks of a defamation action are as follows:
i.   Firstly, you must have defamatory matter, or defamatory imputations arising from matter.
ii.   Secondly, the imputations must concern the plaintiff.
iii.   Thirdly, those imputations must be published.

▪ Publication means communication to a third person: That is, to someone other than the plaintiff. Communication of defamatory statements to the plaintiff might hurt the plaintiff’s feelings, but defamation is concerned with the plaintiff’s reputation, not his or her feelings or sense of self-esteem.

▪ Material can be published by publication in a newspaper, by being broadcast on radio or TV, by being published on a website, or by e-mail (Carlovers Carwash Ltd v Sahathevan Aust Def Reporter 53,060 is an illustration of an injunction application to prevent publication of material contained in two e-mails).

▪ Publication only occurs when, as Isaac J said in Webb v Bloch, the “defamatory sense” is conveyed to the mind of another. (That is why a defamatory statement to a third person who does not understand the language you’re speaking is insufficient.)

Publication:

• Since it is the publication of defamatory matter, rather than mere ‘authorship’ of it, which affects reputation, the general principle is that anyone who participates in the publication process, or who is vicariously responsible for someone else’s publication, will prima facie be responsible for the publication of defamatory matter.

• Who will be taken to have participated in the publication process? (Note how wide the principle is):
•   If a defamatory statement appears in a newspaper, the author, editor, publisher, printer, and even newsagents will be taken to have published it.
•   If a television broadcasts matter, the presenter, producer, and corporate broadcaster will be responsible for publication.
•   And – were it not for Clause 91, of Schedule 5, of the Broadcasting Services Act 1992 (Cth) – an internet service provider would be liable for defamatory material published on a website.
•   Everyone responsible for publication are joint tortfeasors – co-defendants, and actions against each of them will be consolidated.
•   Employers may be vicariously liable for defamation by employees’ provided employees are acting in the course of their employment, or provided agents are within the scope of their authority. On the other hand, if an employee steals defamatory documents and publishes them, the employer will not be liable.
•   Liability for publication requires fault, intentional or negligent conduct: Note that negligent actions may amount to publication: e.g. if you fax a defamatory letter to the plaintiff, it may be read in the ordinary course of business by third parties. Or you leave defamatory matter lying around.

Publication by omission:

It is possible to be responsible for publication by omission. Gillooly describes a case where posters alleging that the plaintiff was a war criminal who had collaborated with Hitler and was trying to institute Nazism into the Liberal Party – were left attached to bus shelters. Hunt J left it up to the jury whether the NSW Urban Transit Authority had - by omitting to remove the posters – approved of, or ratified, or accepted responsibility for the statement, relevant factors being what was a reasonable time to remove the posters etc.

Innocent Dissemination:

• “Innocent dissemination” does not constitute publication.

History of Innocent Dissemination
•   In cases called Emmens v Pottle (1885) QBD, and Vizetelly [1900] QB (referenced in Thompson), it was held that a newspaper vendor – or someone else who has taken a subordinate part in disseminating the libel – is not liable for it if they can prove they did not know, had no ground for supposing that the newspaper contained the libel, that their ignorance was not due to any negligence on their part, and that they did not know, and had no ground for supposing, that the newspaper was likely to contain libellous matter.
•   The reason for this was to exempt common carriers from liability. In law, the innocent carrier or vendor was treated as never having published the libel.
•   Historically, the defence of innocent dissemination was articulated by courts within the context of a “subordinate distributor”, as well as within the context of written or printed publication. Historically, the defence was not open to a printer, given that printing methods meant that a printer could not be unaware of what they were printing.
If you were a subordinate distributor, however, the criterion for success was whether – as Lord Denning said in Goldsmith v Sperrings Ltd, whether the distributor knew or ought to have known that it contained a libel. Innocent dissemination was a defence only for those who were “unconscious instruments” in the publication, and could not know, and could not with reasonable diligence have known that they were circulating a libel.

Thompson v Australian Capital Television (see case summary):
FACTS: ACT Television broadcast of an interview on “The Today Show”, in which the interviewee alleged that the appellant (who was the step-father of the interviewee) had committed incest with her from age 7, and fathered the child she gave birth to at age 14.
•   “The Today Show” was produced live by Channel 9 in Sydney, and transmitted by microwave link to the respondent, Channel 7 (Australian Capital Television P/L), which re-broadcast it throughout the ACT and surrounding parts of NSW. The appellant sued Channel 7 for defamation in the ACT SC. Channel 7, however, tried to rely on the defence of innocent dissemination.
ISSUE: Whether Channel 7 could be regarded as a “subordinate publisher”.
HELD: The court concluded that Channel 7 could not be. Why? Because, TV stations initiate, select, purchase the programs they put to air. “They cooperate actively in the publication” – just like a newspaper, which employs its own reporters. So the majority of the court analogises TV stations with newspapers.
In this case, “The Today Show” went live to air from Channel 9 in Sydney via microwave link to Channel 7. Channel 7 had the ability to control and supervise the material it televised, if it had wanted – the fact it chose to broadcast live did not mean it was “merely a conduit for the programme and hence a subordinate disseminator”.
   Gaudron J, defines a “subordinate publisher” by distinguishing between those who authorise a communication, and those who do not authorise it but participate in it in some other way” (Channel 7 clearly authorised re-transmission of defamatory material to its viewers by its servants or agents).
Channel 7 was unable to escape liability for publication for a relayed TV transmission by arguing it was an innocent disseminator. The onus was on it – as the person claiming the benefit of the rule – to show that it “neither knew nor ought to have known of the defamatory character of the material in question”.
Note: Judges added that it was not a hard and fast rule that a mere distributor of electronic material could never rely on innocent dissemination in appropriate circumstances. Gaudron J also said that the innocent dissemination defence should be able to extend to printers, in appropriate circumstances.

Repetition & Republication:

Repetition by the original publisher:

Gillooly notes that where the publisher of a defamatory statement repeats it to the same or a different audience, each repetition is a fresh publication, and gives rise to separate cause of action (NB different defences may or may not be available for each occasion). It is up to the plaintiff to choose whether to sue in respect of the original publication, or any subsequent one.

• That is why a statement uttered by, e.g. Senator Heffernan about Justice Michael Kirby, which is absolutely privileged because it is uttered in Parliament, would be actionable if it were repeated outside of Parliament. And why, even though Parliamentary privilege may be an ultimate safety valve for democracy as Prime Minister John Howard says, Parliamentarians should exercise their privileges wisely and not conduct character assassinations without credible evidence to back up claims.

Republication is repetition by a recipient of material:

• Again, the plaintiff will have a cause of action against A (the original publisher), and B (the recipient). Republications may, in some circumstances, cause more damage than the original statement.

• Why do plaintiffs sue newspapers rather than the individuals whose defamatory statements are reported? It is not only because newspapers have deeper pockets. It is because the harm to reputation caused by publication to a widespread audience through the newspaper is far greater than the harm caused by the original publication of defamatory matter by a journalist.

• Gillooly states that “the real significance of classifying a repetition of defamatory matter as a republication lies not in the effect it has on the republisher’s liability but in its potential to expand the liability of the original publisher. This is the principle in Sims v Wran.

Sims v Wran [1984] NSWLR
FACTS: The plaintiff had reported on the proceedings of a Royal Commission into the circumstances surrounding the dismissal of committal proceedings against Mr Kevin Humphries. The Royal Commission came about because the ABC had alleged that Mr Wran, former Premier of NSW, had been identified by the then Chief Stipendiary Magistrate (Clary Briese) as having interfered with the result of the committal proceedings.
The plaintiff was at a news conference and asked Mr Wran a question which he refused to answer. The plaintiff asked: “Do you refuse to answer any questions from the ABC?” The defendant replied: “…a great deal of malice has been exhibited by you personally during the Royal Commission. I was far from satisfied by the objectivity of your reporting, and I do not regard myself as being…susceptible to questions from you”.
The plaintiff sued for defamation, since Mr Wran’s statements were made to other reporters who heard the exchange, and the exchange was subsequently reported around Australia.
IMPUTATIONS: Included that the plaintiff as a professional journalist was not objective in his reporting of the Royal Commission, was prepared to permit personal malice to influence objectivity in reporting, and had so conducted himself as to be unfit to participate in a press conference and to ask the Premier questions.
HELD: Court held that were a prominent politician such as the defendant makes a statement at a press conference, it may be taken without doubt that the natural and probably result of his act will be that his statement will be republished in the media, thereby making him responsible for that republication: Speight v Gosnay (1891); and usually in whatever form in which that republication takes place: Webb v Bloch (1928).

When will an original publisher of a defamatory statement be liable for its republication by someone else?

• The original maker of the statement (A) will be liable if they authorised or intended the republication.

• A will also be liable if republication is the “natural and probable consequence” of the original publication of the statement. Gillooly updates the tort language used to describe the concepts of causation and remoteness by stating that liability for republication will arise if it is “in the ordinary course of things the very kind of thing likely to happen”. It is this principle that is illustrated by Sims v Wran.

• Notice, however, in Sims v Wran, the Court goes on to state that since each republication gives rise to a separate cause of action, it must be pleaded separately, so the defendant can plead the appropriate defence in respect of each particular publication. Alternatively, a plaintiff can plead one cause of action arising from one (the original publication alone), relying on republication as evidence of harm going to damages: Cutler v McPhail [1962] referred to in Sims v Wran.

Wen Yue He v Australian Chinese Newspapers Pty Ltd [2005] NSWSC 253
HELD: Plaintiff instituted proceedings where one of the issues was whether there had been publication; It is an essential element of the cause of action of defamation. ACN argued that in this case, because the defamatory matter was published to the plaintiff himself there was no publication to others, and additionally, ACN found that in this case the plaintiff was not entitled to rely upon publication effected by the plaintiff himself to his wife in order to establish requirement of publication. Plaintiff went further and tried to hold ACN responsible for his republication to his wife; in order to deal with whether there was an arguable case, James J relied on leading English authority.
HELD: In Speight v Gosnay the court found 4 categories; first was in circumstance where there was direct authorisation of republication by defendant. Second category was in circumstances when the defendant intended republication of defamatory matter. Third category was where republication was the natural and probable consequence of publication. Fourth category was in circumstances where the republication occurred in pursuance of a moral duty. Judge in this case based his decision on the third category: to publish defamatory matter carries with it the natural and probable consequence that the plaintiff will show the defamatory matter and therefore republish the defamatory matter to the person’s spouse/relatives. In this case, there was at least an arguable case that there had been republication for which ACN could be held liable.

Williams v John Fairfax Pty Ltd (1991) 7 BR 160
FACTS: W operated a restaurant called ‘Robert’s Seafood Café’ and sued Leo Schofield and F for a bad review of his restaurant. David Dale on 2BL decided to read the review in total and seek talkback about the review. W attempted to hold F liable for the republication of the review by D on the ABC. In relation to the basic principles, it was at all times open to W to pursue the ABC directly as a publisher of the defamatory material, but instead preferred to sue F and S and seek damages for republication. There was no suggestion of direct authorisation on the part of F; there was no intention that the review was to be published on radio and there was no moral duty on the part of D to republish the review.
Hunt J: Decision turned on whether the publication was the ‘natural and probable consequence’. In dealing with the preliminary objection of F decided that it was at least arguable that the publication of the SMH carried with it the natural and probable consequence of republication in other forums. This case represents the outer limits for republication as a natural and probable.

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Place of Publication and Choice of Law:

•    Defamatory matter may be published in many jurisdictions: Thompson v Australian Capital Television is an example of this – a TV programme is published in each place where it is seen; and a newspaper in each place it is sold. And we know that a cause of action will then arise in each jurisdiction in which defamatory matter was published.
•    But it would be a gross waste of court resources, and an abuse of process, if the plaintiff was required (and permitted) to sue a defendant in every state in which a publication occurred, in respect of every publication. recipients (private international law issue)
•    Dow Jones v Gutnick: publication requires publication of defamatory matter to another person besides the plaintiff; place of publication is wherever the recipients are located.

Gorton v ABC (1973) 22 FLR 181
FACTS: G was the Prime Minister from 1968-71 after the drowning of Holt in 1967. G was not initially tipped to become leader, but in a series of interviews conducted he emerged as the strongest contender; defeated Whitlam in 1969 general election and continued to 1971. Sir William McMahon was the treasurer at this time and was trying to undermine G. G decided to have a leadership spill and could not allow attacks to him from the back-bench of the Parliament. G was interviewed on This Day, Tonight by Carlton, who asked several truculent questions of G, suggesting he was incompetent, etc. As a result of his maltreatment, G instituted proceedings for defamation in the ACTSC. Originally, G decided he would complain about publication in every jurisdiction in Australia, but prior to trial, his legal advisers decided to confine his claim to publication in NSW, VIC and ACT; it was open to G, with a national reputation, to complain of Australia-wide publication but made the choice to confine claim.
In private international law, the applicable choice of law rule is that from Phillips v Eyre, which required court of forum to refer to the law of the place where the wrong was committed to see whether tort was actionable in that.
HELD: Fox J: considered law in VIC, NSW and ACT; G’s claim was found to be defensible by reference to ACT and VIC law but not that of NSW. G succeeded in part in establishing claim for defamation.

•    This case indicates that in Australia prior to 1 Jan 2006, multi-defamation claims posed a problem because there were 8 different defamation jurisdictions.
•    Secondly, this case indicates that the rule in Phillips v Eyre is no longer the applicable choice of law rule; at this point, Pfeiffer v Rogerson is authority for the proposition that the applicable law is the law of the place of the wrong and in Renault v Zhang the high court extended this to international torts
•    If apply lex loci delicti to Gorton then would still need to deal with defamation laws in all 3 separate jurisdictions; the lex loci delicti as a change, while it may have had a significant change for other causes of action in tort have no net benefit for multi-state defamation claims

Defamation Act 2006
Recommendation by ALRC in 1992 as to their opinions as to choice of law
•    Passage of 2006 defamation laws:
•     See s 11(1) ‘if a matter is published wholly within an Australian jurisdiction area the applicable law must be applied in determining any causes of defamation
o    If complaining about a matter occurring in NSW then the applicable law is that of NSW; importance is s 11(2)
•    S 11(2): if there is a multiple publication, the substantive law applicable is the law with which the publication has its closest connection
o    Applied to Gorton: directs ACTSC to determine which system of law the case had the closest connection with; after this s 11(2) directs the court to apply that law in respect of G’s claim wherever the claim arises
o    Moves away from the difficulty posed by the rule in Phillips v Eyre and the lex loci delicti because there is now only one applicable system of law
•    S 11(3): highlights the features to be taken into account when assessing the system of law with which the plaintiff has the closest connection

▪ The common law also permits a consolidation of all possible claims.

▪ This raises the question: Where should the plaintiff sue? Matter disseminated throughout Australia may give rise to conflict of laws problems, given the differences in defamation law from State to State. For example, a defence may exist in NSW (e.g. statutory qualified privilege), where none would exist under the common law in another jurisdiction (e.g. Victoria).

Choice of forum:

The plaintiff can sue in any forum that has jurisdiction. Publication of defamatory matter in that forum will give the court jurisdiction. Cross-vesting legislation permits the consolidation of defamation actions commenced simultaneously in different States.

Choice of law:

What a court ends up with then, is a situation where publication has occurred in its own forum, but also in other States or jurisdictions. What does the court do? What law does it apply?
▪ In respect of a publication in its own jurisdiction, it applies its own law.
▪ In respect of a publication outside its jurisdiction, it applies the laws of both its own jurisdiction – i.e. the place where proceedings have been commenced [lex fori – law of the forum], as well as the law of that other jurisdiction where the    wrong actually occurred [lex delicti – law of the place of the wrong].

An example:
A plaintiff sues in NSW for defamatory statements published in Victoria, the ACT, and NSW.
•    NSW law applies to the NSW publications.
•    What about the cause of action in respect of publication in Vic and ACT?
– Firstly, a cause of action will only arise if those publications would be actionable under NSW law.
– Secondly, the causes of action in respect of the Vic and ACT publications must also be actionable under Vic and ACT law, respectively.
- It follows that if a defence exists under NSW, Victorian or ACT law, the cause of action in respect of publications in Victoria and ACT will fail.

• As Gillooly and Walker note, cross-vesting legislation complicates the picture. Where a court is exercising jurisdiction pursuant to cross-vesting legislation (e.g. where an action commenced in Qld has been transferred to NSW), and where the cause of action in defamation arises by statute in the place of publication (remember that in Qld, TAS & NSW, the causes of action does arise by statute), then the court must apply the written (statute law) of the place where the wrong occurred: i.e. the lex delicti (i.e. must apply Qld law – in this example; except in matters of evidence and procedure).

• In other words, a plaintiff would in such circumstances be limited to the defences available in Qld: Waterhouse v ABC, unreported, Supreme Court of NSW, 7 February 1992.

9. Internet Publication

Jurisdiction:

Dow Jones v Gutnick [2002]
FACTS: Subscribers paid a fee and could login and access articles. Article called “Unholy Gains”; suggested Gutnick was a tax evader etc. Gutnick sued in defamation for an article that had been uploaded to a web server in New Jersey. That’s where it remained unless subscribers logged in and paid for the article. Whether the SC of Victoria has jurisdiction to hear the matter. Barons sold X hard paper copies of the article, but only 14 were sold in Victoria. Baron’s had 550 thousand subscribers, with a predominantly US audience.
Note: Gutnick was ONLY suing in regards to his reputation in Victoria.

HC reaffirmed basic principles of publication; importance for the purposes of jurisdiction were that under the rules of VSC, the SC had the right to assume jurisdiction over a tort committed in VIC. Because the HC confirmed the tort occurred where someone receives defamatory matter, they found that the tort of defamation was committed in VIC because there were subscribers of the service in VIC such that the SC had the right to assume jurisdiction. Under SC Rules, a court had the right to assume jurisdiction over a claim involving the effects of a tort being experienced in VIC and therefore also could assume jurisdiction because there was damage to G’s reputation experienced in VIC. HC found the VSC had the right to assume jurisdiction; from international law, whether the court ought to exercise jurisdiction is a separate question to be determined.

•    1 issue raised: whether VSC was a clearly inappropriate forum
o    G was ordinarily resident in Melbourne; conducted business in Melbourne; legal advisers limited ambit of claim to within VIC.
o    HC found that the VSC had the right to exercise jurisdiction and it wasn’t an appropriate case for the SC to decline to exercise jurisdiction
•    Reasoning is interesting for 2 reasons:
o    Markedly different approach to internet technologies and their impact on the law of defamation in the judgments: see Kirby J (embrace of idea that internet changes everything) and Callinan J (the internet presents issues of multi-state defamation known and addressed by common law)
*    Recognition of multi-state defamation has been covered by courts for centuries; dispute occurred as to emphasis of the novelty of the internet
o    Joint judgment: engagement with anticipated criticisms of the reasoning; exposes publishers to liability everywhere and the effect of the reasoning is to require publishers to have regard to defamation law of every jurisdiction in the world in order to protect themselves wherever the internet is accessible
*    Engages with limitations of arguments: notes that doctrines such as forum non conveniens so that courts can decide not to exercise jurisdiction when it is a clearly inappropriate forum; also recognises that if proceedings are carried on in many different courts, one or more would stay claim on the basis that it is an abuse of process
*    Also observes that there are issues in relation to access to justice in relation to 1 plaintiff attempting to mount a single defamation claim; costs are a live consideration as to whether someone will bother to sue in multiple jurisdictions
•    Also found that costs will be an issue where plaintiffs want to raise inter-state defamation
Another limit to liability: most prudent people will not bother to sue in more than 1 jurisdiction, especially where the defendant has no assets because the judgement will not be able to be enforced and satisfied

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HELD: Defamation occurs when material is downloaded.
▪ Substantial damages would only be payable if the plaintiff had a reputation in the place in which the publication was made. The damages awarded are the limiting device, rather than the extent of the publication. Damages would only be given in respect of countries where the plaintiff has a reputation.
▪ In considering international publications; if Gutnick had been claiming recovery for Vic and US; then Australian court must give effect to a different balance between freedom of speech and defamation, but in regards to effect in Vic, nothing wrong with applying Vic law.

Ordinary Principles vs. Result in Gutnick:
Usual rule: Publication occurs where defamatory statement is imputed/heard, as opposed to what the court held in Gutnick where the publication was held to be where the article was uploaded (i.e. defaming someone in language they do not understand, NOT defamatory).
AGAINST
Result in Gutnick: Argues that ordinary principle should be modified to where article is uploaded since statement could be read and defamation statement imputed from anywhere in the world. Dow Jones argued that recipients were really self publishing; taking steps to have it published to themselves from a foreign jurisdiction. Also compared the Internet with the comparatively active role of a newspaper or TV. Argued a single global tort; Internet was singularly unique as form of information for anyone with internet connection.

Jameel v Dow Jones [2005] QB 946
Facts: J instituted proceedings against D in respect of an article published in the European online edition of the Wall St Journal which concerned investigations into people believed to be financial backers of Al Qaeda. To access the link of people, the readers had to click on a hyperlink. J instituted proceedings in the English courts alleging publication in the UK; according to D there had been 5 hits on the document; only 2 hits by people unrelated to J but claimed they had no recognition of J.
HELD: CA: agreed that claim should be struck out; doubted wither HC in Gutnick was correct. Expressed a view that the fundamental principles of publication should be reviewed; in Jan 2006 Department of Constitutional Affairs announced they would do this. Found that Gutnick was distinguishable on the facts; in the UK there was no one other than J and his solicitors who had accessed the publication and identified J; there had to be a de minimus requirement for publication. In this case, even if the tort was committed, English courts should decline to exercise jurisdiction over the particular cause of action because it would amount to an abuse of process.
Nationwide News v University of Newlands [2005] QB 946
FACTS: In 2005 the Australian carried an article about ‘virtual universities’ where one of them named was the respondent. The Australian was accessible on the internet, and there the 2nd respondent read the article. On the basis of the article, she instituted defamation proceedings against N in the NZ courts. A problem was that there was insufficient evidence as to if anyone had in fact read the defamatory matter in NZ.
NZCA: Distinguished Gutnick that there was insufficient evidence to justify that publication had occurred. Also doubted whether the case (Gutnick) would represent law of NZ.

Bangoura v Washington Post (2004) 235 DLR (4th) 564
HELD: accepted that the article was available on the archives, but to have access someone would have to search for it. At the time of principal publication, B was a Kenyan national in Africa and had no relevant connection with Ontario, the CA found it was inappropriate to assume jurisdiction over B’s claim. Expressed doubt as to the soundness of HC’s decision in Gutnick as to whether it imposed too broad of a liability.

Remedies:

•    Primary remedy: award of damages; from Gutnick, a problem is the difficulty of enforcing judgments from courts outside forum in the forum.
•    Possible in circumstances of an apprehended defamation the plaintiff may seek interlocutory injunction (see Macquarie Bank v Berg)

Macquarie Bank Ltd v Berg [1999]
FACTS: The plaintiffs, Macquarie Bank Ltd (MBL) and Andrew Downe, and the defendant, Charles Berg, had not been on good terms for some time. For a period before December 1997 Berg had worked for MBL. Since January 1999 a document headed ‘Letters From Charles Berg’, together with other material pertaining to the relationship between the parties as well as the litigation, appeared on the Internet on a site located at www.brgvsmbl.com. But the present case arose from the publication of material on a site located at www.macquarieontrial.com, which has been accessible at least since May 1999.
The material makes serious allegations against the plaintiffs and conveys imputations defamatory of each plaintiff. Whilst the material, which most likely originated from the defendant, was accessible from anywhere in the world including New South Wales, it was ‘reasonably clear’ that the defendant at the time of hearing was not present in NSW and that any acts done by him that resulted in the publication were done in the United States. Thus the case concerned online material hosted overseas. Macquarie Bank wanted injunction from it appearing on website.
HELD: Injunction denied for 3 reasons:
1.    Defendant was in US, therefore issue of enforcement. Injunction was in equity and unlikely to have any affect in US.
2.    Since it was published on the internet, article was assessable to anyone with an internet connection and was not up to the publisher to restrict access; an injunction based on laws of NSW was not appropriate (since it was published on the internet which spreads over all jurisdictions (the injunctive powers of the NSW courts should not be used to impose our values on other jurisdictions of the world)  (NB: What if plaintiff’s reputation was virtually wholly confined to NSW?);
3.    Injunctions only to be given in rare circumstances given fundamental interest in freedom of speech. Requires that all the defences to the defamatory action are likely to fail, however, if there is a chance that a defence may succeed, then defamation must go trial. Imputations must be so clearly defamatory that if a jury or trier of fact decided it was NOT defamatory, the judge would overturn the decision.
The most compelling factor, according to the judge, that militated against making the order of an interlocutory injunction concerned the nature of the Internet itself, that is, the second reason.
It should be noted that the decision could have comfortably and quietly rested on the other two grounds but in particular the last ground, which restricts the remedy of injunctive relief to very rare, exceptional cases. Simpson J seems to acknowledge this when she concludes her discussion on the third ground with the words: ‘Even leaving aside the considerations peculiar to publication on the Internet, I would not be satisfied that this is the kind of case that would attract injunctive relief.’
The judge reasoned that the nature of the Internet is such that it is not possible for an online publisher to restrict the geographic reach of his or her publication. Consequently any prohibition on the publication based on New South Wales law would mean that the publication would have to cease entirely even in those jurisdictions in which it may be legitimate. This in turn could not be within the proper limits of injunctive powers of the New South Wales Supreme Court (or by implication any other local court).

Internet-Hosted Material:

Schedule 5, Clause 91 of Broadcasting Services Act 1992 (Cth)
Clause 91 – Liability of Internet Content Hosts and Internet Service Providers Under State and Territory Laws
(1)    A law of a State or Territory, or a rule of CL or EQ, has no effect to the extent to which it:
a.    Subjects an internet content host to liability in respect of hosting particular Internet content in a case where the host was not aware of the nature of the internet content;
b.    Would require the internet content host to monitor or keep records of internet content hosted by the host; etc

•    At common law, the doctrines of innocent dissemination would ordinarily apply; there is nothing to distinguish internet content from other types to suggest that liability based on Byrne v Dean would not apply.
•    Parliament in 1999 amended Broadcasting Services Act (Schedule 5) (Sch 5, clause 91):
o    Cl. 91(1) limitation: It is clear that (1) means that Internet content hosts/service providers cannot be obliged to investigate whether they are in fact carrying defamatory matter (ISP/ICHs do not have to prove an absence of constructive knowledge/negligence that gave rise to their knowledge). They are therefore only liable if they are aware of the presence of defamatory matter.
    This is of no use in circumstances where an ISP/ICH is put on notice as to the existence of defamatory content; if they are notified they have no benefit from Clause 91.
o    Further limitation: Demonstrated to reference to what constitutes internet content (in Cl. 3 Sch 5) which indicates that excluded from the definition of ‘Internet content’ is email and information transmitted in the form of a broadcasting service with the effect that they are determined solely by reference to common law doctrine of publication.

Collins, “Liability of Internet Intermediaries in Australian Defamation Law” (2000) 5 Media & Arts Law Review 209
•    In Thompson the court took the view that Channel                                                             7 could not rely on defence of innocent dissemination. The same reasoning in Thompson is likely to apply to Internet intermediaries, at least in respect of bulletin board (newsgroup) postings and web pages. Such intermediaries could arrange their affairs so as to monitor and censor the material they host or carry. Such material carries a risk of defamatory statements being made. Where an Internet intermediary fails to monitor or censor bulletin board postings and web page hosted or carried by it, it has probably failed to discharge the duty of care to which the defendant was held in Thompson.

•    However, the introduction of Clause 91 of the Broadcasting Services Act 1992. Clause 91(1) is in effect, a new defence to defamation law for Internet intermediaries. In defamation proceedings, it is now open to Internet intermediaries to plead that:
-    They satisfy the definition of an Internet service provider or an Internet content host
-    The material complained of by the plaintiff satisfies the definition of Internet content
-    They were not aware of the nature of the Internet content at the time of publication; and
-    Accordingly, any liability to which they would otherwise be subject under criminal or civil defamation law is excluded by the operation of Clause 91(1)

•    Clause 91(1) was not primarily intended to create a new defence to civil defamation law. As a result, it complicates rather than clarifies, the liability of Internet intermediaries who host or carry defamatory material which they did not create. In the first place, rather than establishing a simple defence applicable to all Internet intermediaries in respect of all forms of internet publication, Clause 91(1) has a selective operation. In those cases falling outside the scope of Clause 91(1), liability continues to depend on the ordinary rules of defamation law.

•    Secondly, by limiting its availability to cases where the internet intermediary is not aware of the nature of the content hosted or carried by it, Clause 91(1) discourages intermediaries from monitoring content, and potentially imposes liability even in cases where the intermediary has made all reasonable efforts to prevent offending content from continuing to be accessible.