Defamation 1: Basic Liability Concepts

Question 1

Three steps to consider in defamation rules

Answer 1

1. Statutes restore common law of Australia and are the main source in Australia for Defamation.
2. The Australian Constitution as it governs implied rights and freedoms including freedom of communication, freedom of governmental speech. The more you allow people to sue for defamation, the less you are free to speak. Any laws that are inconsistent with the freedom of speech are struck down as being inconsistent with the Constitution.

Question 2

What does the Defamation Act now do?

Answer 2

s7 makes all forms of defamatory words actionable per se (no damage need be proven).
Contrast this with the Law of Negligence which you have to prove damage.

Question 3

Second requirement: Defamatory meaning - What are the three different tests by which something is defamatory?

Answer 3

An imputation of fact which tend to expose the plaintiff to “HATRED, CONTEMPT OR RIDICULE] or which tend to [LOWER HIM OR HER IN THE ESTIMATION OF RIGHT-THINKING MEMBERS OF SOCIETY IN SOME RESPECT] or which causes him or her to be [SHUNNED OR AVOIDED].

Question 4

Second requirement: Defamatory meaning - What are the three different tests by which something is defamatory?
Examples 1: Borrowing money from domestic servant

Answer 4

Sim v Stretch

Borrowing money from domestic servant: Not accepted at the time to the defamatory.

Question 5

Second requirement: Defamatory meaning - What are the three different tests by which something is defamatory?
Examples: Being a victim or rape or seduction

Answer 5

Yousoupoff v MGM
Russian princess was protrayed as either seduced or raped.
It wouldn’t make her ridiculed, hated or brought into contempt. It wouldn’t lower him in terms of estimation of right-thinking members of society.
This case was where they established the ‘shunned or avoided’ test.
According to this tssnard, it could be defamatory to suggest either she was seduced or raped. Not because people would think worse of her, but nevertheless it might lead to some point, her social exclusion.
This would lead to a decrease in her social opportunities.

Question 6

Second requirement: Defamatory meaning - What are the three different tests by which something is defamatory?
Examples: Bulimia

Answer 6

John v MGN]
An imputation that someone had a serious eating disorder. A newspaper alleged that Elton John was having symptoms of Bulimia, all of which were untrue.
He tried to sue newspaper for defamation.
His action wouldn’t have fit the first two tests, but it was caught on the third test. Shunned or avoided.

Question 7

Second requirement: Defamatory meaning - What are the three different tests by which something is defamatory?
Examples: Business Reputation

Answer 7

Sungravure v ME Airlines
D had written a book of fiction. In the book of fiction, they suggested that passengers that used ME Airlines were at serious risk of highjacking. In this case, words can lead people to avoid you economically.
The imputation wasn’t that there was something wrong with it, but that people would be exposed to a bigger risk, hence people would avoid that company.

Question 8

Second requirement: Defamatory meaning - What are the three different tests by which something is defamatory?
Examples: Insults

Answer 8

Parkins v Scott (1862)
Insults which are expressed in a context in which the are understood as such, are not actionable as being defamatory.
This case was that, in that situation, it’s clear what the person is saying is merely an opinion, not an imputation of fact. Because of that, it’s likely people will think less of the speaker rather than less of the person whom the things are said about.

Question 9

Second requirement: Defamatory meaning - What are the three different tests by which something is defamatory?
Examples: Public ridicule / figure of fun

Answer 9

Boyd v Mirror News (1980)
Boyd was a rugby player, banned from the sport for eye gouging.
Towards end of his career, newspaper published after a match describing him as waddling onto the pitch, under the title of fat and predictable.
On the face, they look like insults.
If the words were taken to man Boyd was unprofessional and in that sense he let himself get into a state which rugby players shouldn’t be in, then it would be defamatory.

But courts in this case, didn’t take the words on that basis.
The mere imputation was regarded as defamatory. even if the imputation wasn’t seen in light of professional standards, it was displayed in a ridiculous light, not withstanding moral blame on his part.

Question 10

Second requirement: Defamatory meaning - What are the three different tests by which something is defamatory?
Examples: Public ridicule / figure of fun

Answer 10

Berkoff v Burchill
Burchill was a film critic. She didn’t like Berkoff and she wrote two reviews. First film was age of innocent, in which she wrote “Berkoff hideously looking people” and then 9 months later, review of Frankenstine “it’s a lot like Berkoff, only marginally better looking”.
Berkoff sought proceedings.
Courts said that these words were not simply insulting, but defamatory and potentially actionable because they didn’t decide the issue, but left it to the jury.
To say that about a person who has made some of his living by being an actor, lowers him in standing and an object of ridicule. But it wasn’t this. It was more shunning and avoidance.
Though the result in this case is questionable since the law of defamation isn’t about protecting someone’s rights.

Question 11

First requirement?

Answer 11

The defamatory statement must contain defamatory matter. This includes:
1. Oral words;
2. Written docs;
3. Emails;
4. Texts;
5. Films;
6. Radio broadcasts 
7. Shaps
8. Waxwork
9. Isn't confinedn to words or images. 
The definition of matter under the Defamation Act Schedule 5 includes articles, reports, newspaper or periodical program. Anything else communicated by TV. 
Any other thing by means of which may be communicated to a person.

Question 12

Second requirement: Defamatory meaning - What are the three different tests by which something is defamatory?
Objective standard: “Right thinking members of society generally”

Answer 12

1. You apply general community standards.
2. You don’t have to prove as a P, that anyone in society actually did think less of the person. Only show that the words that were published had the potential to lead people to think less of another. Of course in that situation, you would only get nominal damages.
3. Whether a person intends of knows that their words will be regarded as defamatory is completely irrelevant. Cassidy v Daily Mirror. This case: D newspaper innocently published a photograph of a person called Mr Corrigan and the photograph also contained a picture of a woman, as Mrs X who’s engagement had been announced. The P was Mrs X and she was married to Mr Corrigan. She sued newspaper on the basis that the photograph carried the imputation that she was living with someone who wasn’t married. At the time it would’ve been regarded as defamatory.
   She succeeded, but the newspaper had no idea that she was Mr Corrigan’s wife. They didn’t even know who she was as she kept her old name. They had no means of knowing that she was married. But it was held to be irrelevant. Nor did they intend to defame here, but this was again irrelevant.
4. General community standards applied.
   Lucas v Young - Woman accused of witchcraft. She was avoided because of the standards of her Community that she belonged to, but the 20th Century community didn’t believe in witchcraft. Was held not to be defamatory.
   Reader’s Digest v Lamb - an imputation was made that he used his close relationship with his friend to get details on an article of which he then used to get money. The judge at first instance allowed evidence of three journalists to be admitted, who considered it to be defamatory because that sort of behaviour would be viewed as improper. HC ultimately said that the proper standard to apply was the general community standard, not of the three journalists. This case ENDORSES the general community standard.
   Hepburn v TCN Channel Nine - Channel 9 published a pgoram which had an imputation made about a woman who was a doctor was an abortionist (someone who is engaged in providing abortion services to the the community). She wasn’t doing it illegally. She sued.
   The area the P was in was divided in relation to it’s standards. Two judges held dematory becuase a reputable/substantial part of society would regard it as defamatory.
   Idea here was that if a section of the community which is less than the majority, it is enough that it is a substantial or reputable section.
   Radio 2 UE v Chesterton - if you don’t protect some views of some communities, you aren’t respecting the views of the minority groups.

Question 13

Second requirement: Defamatory meaning - What are the three different tests by which something is defamatory?
The importance of context

Answer 13

Charleston v News Group
The context of the whole article in which it appears.
Case: involgin a newspaper published an article with the headline “what’s harold up to…? Couple on Neighbours?.
There were pictures which depicted the actors engaged in a sort of pornographic act as a way of earning their living. Under the photo however, there was a caption that said it wasn’t them, but they had been aded to porn actor bodies in a scene from a video game.
Courts said it was defamatory because a reasonable reader would understand those pictures and words in the context of the article. A reasonable reader wouldn’t just look at the picture, but read on.

Question 14

Second requirement: Defamatory meaning - What are the three different tests by which something is defamatory?
Extended meaning

Answer 14

Favell v Qld Newspapers
based on what happened in New farm.
The owners of some property had put it in for development to destroy the building and build a new one.
Building was burnt down before any protests. The local newspaper recited in a fairly neutral position of what happened, but suggested that it was burnt down on purpose.
Talks about owners “neighbours had planned a meeting for process”.
A lot of extended meanings in the statements.
None of the words seemed defamatory, but the way in which it had been juxtaposed is that a reasonable reader reading between the lines would find a meaning. The could held that the words would give rise to an imputation that the P’s were guilty of a crime or reasonably suspect of being guilty.
Held: defamatory.

Words can have meaning by legal innuendo. A meaning that words won’t ordinarily appear to have to an ordinary reader, but do have meaning to certain people by virtue of their knowledge of special facts.
Tolley v Fry & Sons - Where P who is an amateur golfer who is portrayed in a picture with D’s chocolate bar poking out of his pocket. He sues them on the basis that his status as an amateur golfer would prevent him from accepting sponsorship from any organisation. That image contained a defamatory meaning merely because of a legal innuendo.

Question 15

What is the third requirement?

Answer 15

The defamatory material must be brought to the attention of someone other than the speaker and the person who the comment is made about.
If you send the person a letter, it is not actionable. However offended you are by the words, it doesn’t matter.

Question 16

Third requirement: Publication - Initial Publication

Answer 16

1. Person who initially publishes it can be liable.
   Bryne v Deane
   P was a member of a golf club. P had told police the golf club was operating gambling machines illegally.
   Someone in the club didn’t like this and so they put up a poem about him on the notice boards.
   Nobody knew who the author was.
   It was found not to be defamatory.
   But what about the club? As soon as the poem went up, P notified the secretary to take down the notice. The notice was only taken down 2/3 days later.
   Held: Club could also be held to have published the notice even though it wasn’t the original author but because it had failed to take it down after a reasonable time.

The same principle applies to internet postings: Godfrey v Demon Internet - An ISP provider is held to be publishing any material that is downloaded from the site.
And in Dow Jones v Gutnick - the material is published WHEREVER it is downloaded.

Letters opened by unintended parties can be held to be established if it was reasonably foreseeable in the reasonable occurring of events. If so, you’ll be taken to have published it.

Urbanchich Case
P was complaining about a number of posters that had been on D’s bus stop. Hhe notified council and demanded them taken down. Wasn’t taken down till 1 month later.
Court, using principle of Bryne v Deane - held not to be defamatory. The test applied seems different.
They said according to authorities, if D consented to or approved of or adopted or promoted or in some way ratified the continued presence of the material on the property. In other words, the P must establish an acceptance by D of responsibility for the publication’s continued presence.
This can be inferred from the facts. The greater the delay, the more likely there’s acceptance.

Question 17

Third requirement: Publication - Repetion

Answer 17

Each repetition constitutes a fresh publication that can be taken upon.
E.g. I write something, I publish it. The printer is regarded as publishing it. The distributor is also publishing it.
Ultimately, publication upon publication can occur in respect of one single defamatory.
s32 of Defamation Act - Innocent dissemination which givevs subsidiary distributors a defence if they didn’t know or had no reason to believe that the material was defamatory.

If there is a repetition, the original publisher may be liable for damage that flows.
Williams v Fairfax Group - Mr Leo was a harsh food critic. He wrote a review of a local restaurant in which he said “lorekeets on the loose, otherwise an unremarkable meal. It was most bizarre”. He described one of the staff members pretty badly.
His review was picked up by radios who then read out his review.
Restaurant sued.
It was held that the original publisher could be held responsible for damage caused by the radio channel as well.
There are 4 circumstances in which the original publisher can be held liable for any repetition:
1. Authorise the repetition
2. Where you intend the repetition
3. Where the repetition is a natural consequence of the original publication
4. Moral obligation
If you write the article that is inviting someone else to pass the info on, then the subsequent damage can be recovered.

Question 18

What is the fourth requirement?

Answer 18

The defamatory material must have been published “of and concerning” the plaintiff. Kasic v Australian Broadcasting Corp.

The judge decides whether words are CAPABLE OF REFERRING to P. The Jury decides whether the word IN FACT refers to P.

Intention irrelevant:
1. Unwitting use of another’s name - Hulton v Jones - D wrote a complete work of fition and in that work, he refers to a person called Artemis Jones. He said something that was clearly defamatory. Just so happens that Jones read and he was a barrister with the same name as the character. He sued and was successful.
Would a reasonable reader believe the words that refer to the P? - that’s the question.
2. P only identifiable by innuendo - Steele v Mirror Newspapers

Question 19

Radio 2 UE v Chesterton

Answer 19

Same test as Sim v Stretch - do the words lower standing of the person can and should be applied to business defamation.

This case: Radio presenter interview a person called Chesterton. They had a serious falling out and on air, Chesterton was described as having an inferiority complex. They were not true.
The imputation was that Chesterton had been fired and that he was a bafoon and shouldn’t be taken as a serious journalist.
If you call a journalist that, there’s an inference that they’re not to be taken seriously.
Held: All three were actionable.
It lowered his standing in community.

Question 20

McCormick v John Fairfax

Answer 20

If you defame one or two or a small and identifiable community within which the person is easily able to be identified in the defamatory comment.

Question 21

Fauner v Golden City Council

Answer 21

Suggested that an allegation that someone is gay may be defamatory.
However, the slightly recent case of Rivkin (2001) seems to conclude that saying someone is gay is NOT defamatory. In exam, you would say according to recent case law.