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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