What is 'matter'?

Section 116 of the Civil Law (Wrongs) Act defines matter very broadly to include:

a) an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical; and

b) a program, report, advertisement or other thing communicated by television, radio, the internet or any other form of electronic communication; and

c) a letter, note or other writing; and

d) a picture, gesture or oral utterance; and

e) any other thing by means of which something may be communicated to a person.

When is matter ‘published’?

Matter is published if a defamatory ‘meaning’ or ‘imputation’ is communicated to just one other party (other than the plaintiff and the defendant). The extent of publication is relevant to the amount of damages awarded.

Repeated publications

It is not a defence to defamation to say you are merely repeating or republishing someone else’s publication. Every republication of the same, or substantially the same, defamatory matter in substantially the same form to one or more persons is a new publication of defamatory matter, and each ‘publisher’ is answerable as if the defamation originated with them (Civil Law (Wrongs) Act, s123 (5)). A plaintiff will often sue both the author of the defamatory publication as well as other parties who republish the matter: Gorton v Australian Broadcasting Commission (1973) 1 ACTR 6.

The original ‘publisher’ of defamatory matter can also be liable for subsequent republications by other parties. For example in the case of Sims v Wran [1984] 1 NSWLR 317, a politician was held liable for repetitions in the media, of defamatory statements he made during a press conference.

Identification

Published matter must identify the plaintiff in order for it to be defamatory. Deliberately naming or showing a photo identifying a person will amount to publication under defamation law, but ‘identification’ can also occur inadvertently or accidently. In Lee v Wilson ([1934] HCA 60; [1934] HCA 60; (1934) 51 CLR 276) a newspaper article in Victoria referred to a corrupt Detective Lee. At the time there were three police officers with the name 'Lee' in Victoria. The court held that the article had potentially identified and defamed all of them.

If a group is defamed (eg all lawyers are thieves), usually no individual member can sue unless that group is very small and identifiable (eg current ministers of the Queensland Parliament) (Bjelke-Peterson v Warburton [1987] 2 Qd R 465).

Unique facts, like a person’s job title (eg manager of a specific company), address, family relationships or other characteristics may also identify a party for the purposes of a defamation claim. Showing footage of a party’s house or place of business as background to a story may give rise to the imputation that the story is about them (Henry v TVW Enterprises Ltd (1990) 3 WAR 474).