The elements of defamation

Contributed by Carolyn Tan and current to 1 September 2005

WHAT IS DEFAMATION?

The law of defamation seeks to protect individual reputation. Its concern is not so much with insult or hurt personal feeling, but with likely injury to the respect and esteem in which a person is held by her/his fellows.

A communication may be defamatory in its ordinary and natural meaning but also by innuendo: for example, where the reader has to put two and two together or read between the lines to understand the defamatory meaning, or where an uncommon slang term is used. It may also be defamatory by innuendo when the reader knows of additional facts that might only be known by some members of the public. For instance, a newspaper notice incorrectly saying that a woman has just given birth would not appear defamatory, but could be regarded as such if people know that she was just married 4 weeks before and had been claiming to be a virgin at the time.

There is no need for a person publishing the material to know that the material published is defamatory or to intend that it be defamatory. To succeed in a defamation action, one only has to show that the reasonable listener or reader who may know about facts which cast a different light on the published material understand the material to have a defamatory meaning.

It is often hard to determine what the meaning of a statement really is. It is common for things to be hinted at vaguely, which gives the impression that someone has done something improper, but what it is precisely is not clear. Such difficulties in defining what is the precise defamatory thing that is being imputed have given rise to much legal argument. The test is an objective one, and the fact that some people have used a strained interpretation or jumped to an unfair conclusion is usually not enough. One description of the test has been that of “ordinary readers not avid for scandal”.

The standard of opinion about what will be defamatory is that held by the community at large and not that held by some narrow section or group. The test is one of “ordinary right-thinking” members of the public. To say that someone provided information to the police may damage a person’s reputation in a particular criminal group, but is not likely to be found to be defamatory. It is often difficult to judge what would be considered defamatory. For instance, people generally do not think less of a person who has had a blood transfusion. However, if that person is a Jehovah’s Witness, such an allegation could prove particularly damaging in the group of people within the society that is particularly important to him or her, namely fellow Jehovah’s Witnesses. Even though the victim in this example is seriously damaged in the eyes of the group of greatest importance to him or her socially, economically and culturally, the allegation producing this reaction may not be defamatory if it were not a standard of opinion which would be shared by the community at large.

WHO MAY SUE?

Individuals

For a person to succeed in a defamation action, the reputation of that particular person must be likely to be injured by the defamatory material.

Defamation has to be about living people. It is not possible to defame a dead person, even though family members may be hurt by the comments.

Companies

As the law currently stands in WA, companies and other incorporated bodies are regarded as legal persons in their own right, so they can at present sue for defamation. The damage suffered, however, has to be of a financial or business kind and no damages can be obtained by a company for injury to feelings (as companies do not have any. This would be different if the defamatory statement could be said to be about directors or members of a committee and not just the company.) A company whose trade or goodwill is affected can therefore sue for defamation. Unions have been able to sue because their membership subscriptions and finances may suffer as a result of the defamation. This may be harder for government or statutory bodies if their income is unlikely to be affected.

The proposed uniform defamation laws are likely to change this situation by removing the right of corporations to sue unless they:-

• are a not-for-profit corporation
• are not also a local council or public or governmental authority.

Individuals will still be able to sue for defamation if they are personally defamed by the statement about the corporation.

Clubs and other associations

If a body does not have a legal status in itself (for example, an unincorporated club), it cannot sue, but its individual members or officers may be able to sue in relation to a defamatory statement made about the body if they can prove that they in particular were defamed by the statement made about the body. For instance, if a person says that a club is inefficient and corrupt, and if particular officials responsible for the administration of the club can prove that others would understand that statement as referring to each of those particular officials, then those officials may individually sue the maker of the statement.

If the group which is referred to in the statement is so large and varied that it is impossible to prove that a specific individual was referred to in the statement, one would not be able to successfully sue for defamation. For instance, one would probably not be able to sue for statements made about “lawyers”, “doctors”, “the students at X University”, “the staff of Y department store” etc.

REFERENCE TO THE PLAINTIFF

While it is necessary to show that the plaintiff is referred to in the defamatory statement, that person does not have to be expressly named. For instance, a person may not be named in an article, but someone can sue if the description is such that people can tell who it is that is being referred to.

There is no need to prove that the person making the defamatory statement intended to refer to the plaintiff. It is sufficient if people could reasonably suppose that the material referred to the plaintiff. It is possible therefore to defame someone accidentally. For example, if a fictional piece spoke of “John Smith, a baker in suburb X” and there was a John Smith who was a baker in that suburb, and if people could reasonably believe from the article that the real John Smith was being referred to, then this could give rise to a defamation claim.

Similarly, an adverse news story may be broadcast about an un-named priest, and as an illustration may show footage of the interior of an unrelated church. If that church in the footage is recognisable by viewers who know it, then the priest of that church may well be able to sue for defamation, even though the reference was always intended to be to another priest.

Gossip & Rumour

In some circumstances it may be that one can repeat an allegation but, when taken in context, that disparaging allegation is completely rebutted. But it is often not clear when this point has been reached. In a well-known case involving Junie Morosi in 1980, a radio commentator repeated a rumour about Morosi and then went on to say there was not even the faintest suggestion that it was true. The NSW Court of Appeal found that this was still defamatory, even though the speaker appeared to be trying to defend Morosi’s name: Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418.

REPEATING ALLEGATIONS

It is no defence to a defamation action to quote someone else who has made a defamatory statement, or to claim one has simply repeated a rumour. While it may be true that there is a rumour, or the person may be accurately quoted, the statement could still be defamatory.

It is also no defence to publish two sides of an issue and thus give a “balanced view”, for instance by publishing the statement and the plaintiff’s denial, although this may well assist in reducing the amount of damage suffered by the person defamed and hence might reduce the amount of damages which the defendant would have to pay.

PUBLICATION REQUIRED

The defamatory material must be published to a third party. This means it must be disseminated in any form to someone other than the plaintiff. An accusing letter sent to and read by only the person it is about is therefore not published to a third party and is not capable of giving rise to a defamation action.

The publication must also have been made to a person who is capable of understanding the defamatory significance. Therefore, it cannot have been made in a language foreign to the person or persons to whom it was published if they could not understand it. It is immaterial that the person to whom a publication was made did not believe the allegation, although this would be relevant to damages.

Publication on the Internet

While the law has not been finally settled, it is likely that Internet Service Providers (ISPs) and others who host websites or bulletin boards can, under the current law, be liable for publication, at least if it can be shown that someone would have accessed it, so that it can be said to have been “published” to someone. In the Gutnick v Dow Jones case, the defendant operated a subscriber service where subscribers could download various journals such as the financial journal that contained the defamatory statement. The defendant was held to be liable for the publication: Dow Jones & Co Inc v Gutnick (2002) 194 ALR 433.

Publication must be intentional

While the person who publishes the material does not have to know or intend that the material be defamatory, he or she must knowingly do the act of publication. So if a thief steals the defamatory letter from a brief case and reads it, there is no publication. Or if it were sealed and the envelope marked “personal and confidential”, there is no publication where it is opened and read by the victim’s spouse. If an eavesdropper overcomes the reasonable precautions which someone has taken to avoid this and overhears the confidential conversation in which, say, A is accusing B of serious offences, again there is no publication. The act of publishing, that is, of making known the material which is in fact defamatory (whether or not it is known to be such) must, in other words, have been intentional or negligent to be actionable.

It is important to stress that publication involves no more than being responsible for communicating a statement, so that it is likely that more than one person may be liable for the one defamatory publication. For example, an author, a printer, a publisher all “publish” a libel, as does a distributor who has reason to know that a book, newspaper or pamphlet contains defamatory material. Moreover, every separate printed sheet that is distributed is a separate publication.

However, there is a defence of innocent dissemination that may be available for certain innocent distributors who did not know of the relevant defamatory part of the publication, and where their absence of knowledge was not negligent in any way. The proposed uniform defamation laws are likely to clarify that such a defence exists for “subordinate distributors” who would not reasonably have known of the defamatory imputation eg booksellers, librarians, providers of postal services. This is likely to be extended to providers of services which copy, distribute or sell any electronic medium, and to broadcasters of live programs and operators of communications systems etc, if they have no effective control over the person making the statements.

LIBEL AND SLANDER

Historically, the law has divided defamation into two categories – libel and slander.

Libel is the publication of defamatory matter in permanent form (for example, written or drawn or sculpted or broadcast), and slander is the publication of defamatory matter in nonpermanent form (for example, spoken). For instance, something defamatory that is printed in a newspaper or book would be libel, whereas something spoken (if defamatory) would be slander. Section 206 of the Broadcasting Services Act 1992 (Cth) deems publication of defamatory matter over radio and television in Australia to be in permanent form, that is, libel.

As far as a publication over the internet or on a website is concerned, the prevailing view is that such a publication would be a libel. Publications in motion-pictures have been held to be libel and it is likely that video and sound recordings would be treated in a similar way.

Limits on suing for slander

In practice, the difference between libel and slander can sometimes be important. One can sue for a libel without proving any actual loss or special damage whereas one cannot sue for slander without proving actual loss or special damage except in a few isolated exceptions. These exceptional slander situations are:

• Imputing a crime punishable by imprisonment;
• Imputing a contagious or infectious disease;
• Disparaging a person in his or her office, profession, trade or business;
• Imputing unchastity to a woman.

Some examples of imputations disparaging of a person in their office, profession, trade or business include allegations that a trader is insolvent or a person lacks qualifications or skill for his or her work. The rule however has not included allegations of a headmaster committing adultery with a school cleaner, as this did not relate to the headmaster’s profession.

Except for the four above-named situations, one cannot successfully sue for a slander no matter how insulting or outrageous it may be unless one can prove special damage, that is, actual loss. Special damage is usually described as being the loss of some material advantage capable of being estimated in monetary terms and which is the natural and reasonable result of the published statement. The effect of this is that a mere loss of reputation does not entitle someone to relief. The only loss that will be safeguarded by the common law in a case of slander (except in the four cases named above), is a material or financial loss which follows from a loss of reputation because of a defamatory publication.

Proof of the sting of the libel

It may be possible to prove the “sting of the libel” is true. In the Khashoggi case in the UK, the plaintiff had been alleged to have been involved in a number of sexual relationships. The plaintiff complained only about one of them as being untrue and sued in relation to that allegation. The court found that the sting of what was said was an allegation of promiscuity and it may be a sufficient defence if that was shown to be true, even if the particular relationship in dispute was not. Characterising what is the defamatory sting can be difficult: Khashoggi v IPC Magazines [1986] 1 WLR 1412 (CA).