This article outlines the elements of the tort of Defamation in Australia and the various defences available at law.
Previously, different Australian states had different Defamation laws, which often resulted in plaintiffs ‘forum-shopping’ by commencing their claim in the jurisdiction in which the law of defamation was most favourable to their case.
Now in Australia there are uniform Defamation Acts which have been designed to overcome this problem.
Section 6 of the Defamation Act 2005 provides that “This Act does not affect the operation of the general law in relation to the tort of defamation except to the extent that this Act provides otherwise (whether expressly or by necessary implication)”. Therefore, the common law still applies to the extent that it is not extinguished expressly or by necessary implication by legislation.
Section 8 of the Defamation Act 2005 provides that:
“A person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation about the person is carried by the matter.”
In order to establish a prima facie claim for defamation, a plaintiff must prove that there was a defamatory matter, that they were identified in defamatory matter and that the defamatory matter was published. These three elements will now be discussed.
MEANING OF DEFAMATORY
A plaintiff is said to have been defamed if a publication causes the reasonable person to think less of them: Reader’s Digest Services Pty Ltd v Lamb  HCA 4.
In Random House Australia Pty Ltd v Abbott  FCA 1538, Beaumont J stated:
“The test for what may be defamatory at common law is well established. A publication, without justification or lawful excuse, exposing a person to hatred, contempt or ridicule, calculated to injure that person’s reputation, is a libel. But this is not to be taken as an exhaustive statement. A person may be defamed by an imputation of a disability in the performance of the functions of his or her office, although the imputation does not expose him or her to hatred, contempt or ridicule. A false statement about a person to his or her discredit is defamatory. Thus to attribute to a person a want of capacity as the holder of an office will be defamatory. The mere imputation of a lack of ability to discharge the duties of that office is sufficient. It is not necessary that there should be an imputation of immoral or disgraceful conduct (per Brennan J in John Fairfax v Punch  FCA 100; (1980) 31 ALR 624 at 632 – 633 citing Lord Herschell in Alexander v Jenkins  1 QB 797 at 800). Thus, the substantive legal issue here may be expressed as whether the material complained of was defamatory of the plaintiffs in that it was to his or her “discredit … [tended] to lower him [or her] in the estimation of others … to expose him [or her] to hatred, contempt or ridicule, or to injure his [or her] reputation in his [or her] trade or profession” (see Chakravarti v Advertiser Newspapers (1998) 193 CLR 519 per Gaudron and Gummow JJ at 545 quoting Gatley on Libel and Slander, 8th ed. (1981), par 31)”
To be defamatory, the matter must injure the plaintiff’s reputation by lowering them in the estimation of others, exposing them to hatred, contempt or ridicule or causing them to be shunned or avoided.
Defamatory meaning can arise from the natural and ordinary meaning or true innuendo of the matter. True innuendo refers to matter which is defamatory as a result of an audience’s knowledge of certain extrinsic facts.
The case law shows what is and is not defamatory.
In John Fairfax & Sons Ltd v Punch  FCA 100, it was held that implying that the leader of a political party had lost the confidence of a significant number of its members was defamatory because it questioned their ability to lead the party and imputed incompetence.
However, in Sungravure Pty Ltd v Middle East Airlines Airliban SAL  HCA 6, it was held that stating an airline was the target of a terrorist attack was not defamatory, as although it may damage the business of the airline, the statement did not disparage the airline.
In Byrne v Deane  2 All ER 204, a poem placed on the wall of a golf club implying that the plaintiff had reported illegal poker machines to the police was held by a majority of the Court not to be defamatory because reporting illegal activity would raise the plaintiff’s estimation in the eyes of society in general.
In Boyd v Mirror Newspapers Ltd  2 NSWLR 449, it was held that a newspaper article describing the plaintiff as ‘fat’ and ‘slow’ was held not to disparage him because no blameworthiness was implied.
On the other hand, in Berkoff v Burchill  4 All ER 1008, a majority of the English Court of appeal held that describing the plaintiff was ‘hideously ugly’ was defamatory because it was capable of making him an object of ridicule.
In Ettinghausen v Consolidated Press Ltd (1991) 23 NSWLR 443, a photograph of the plaintiff in the shower capable of being interpreted as showing his genitals was defamatory because it was capable of subjecting him to a non-trivial degree of ridicule.
Describing someone as insane has been held to be defamatory because it would cause the person to be shunned: Morgan v Lingen (1863) 8 LT 800. For the same reason, an imputation that a person has Hepatitis B is also defamatory: Henry v TVW Enterprises Ltd (1990) 3 WAR 474.
Whether matter is defamatory is a question of law to be determined by reference to the hypothetical referee or ‘ordinary reasonable reader’, who “is a person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal’: Farquar v Bottom  2 NSWLR 380. See also Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158.
Whether the defendant intended to defame the plaintiff is immaterial, the question is whether the ordinary right-minded remember of society would consider the matter to be defamatory. A relevant consideration is what are the community standards of the time that the matter was published. As Kirby said in John Fairfax Publications Pty Ltd v Rivkin  HCA 50; (2003) 201 ALR 77:
“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. Once, it was highly defamatory in many countries to allege, or suggest, that a person was a communist. Now, in most circumstances, it would be a matter of complete indifference. The day may come when, to accuse an adult of consenting homosexual activity is likewise generally a matter of indifference. However, it would ignore the reality of contemporary Australian society to say that that day has arrived for all purposes and all people. 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 sometimes be defamatory.”
A plaintiff must establish that the defamatory matter is about them: Sungravure Pty Ltd v Middle East Airlines Airliban SAL  HCA 6.
If the plaintiff is named in the defamatory matter, they will have been identified. On the other hand, a person may be impliedly identified. In Cassidy v Daily Mirror Newspapers Ltd  2 KB 331, a newspaper of the plaintiff’s husband with another women accompanied by a statement that they were engaged to be married was held to be referrable to the plaintiff as those who knew her would think she was her husband’s mistress.
In Lee v Wilson (1934) 51 CLR 276, the High Court held that if defamatory matter is capable of referring to more than one person, then all who may be considered to have been referred may bring an action, even if the defendant intended to refer to someone else.
However, if the defamatory imputation is related to a group of individuals or a class, the plaintiff must show that the matter is reasonably referrable to them: Godhard v James Inglis & Co Ltd (1904) 2 CLR 78. In Knupher v London Express Newspaper Ltd  it was stated by Lord Atkin that libel concerning a large of indeterminate number of people would be difficult to sue on because “the habit of making unfounded generalisations is ingrained in ill-educated or vulgar minds, or the words are occasionally intended to be facetious exaggerations”.
See also Mann v Medicine Group Pty Ltd (1991) 105 FLR 419, in which allegedly defamatory matter in respect of bulk billing doctors was held to not identify the plaintiff.
Publication in defamation law refers to communication of the defamatory material to persons other than the plaintiff. If the defamatory material is not seen, heard or read by a person other than the plaintiff there is no action in defamation.
There are also exceptions. Unauthorised interceptions of communications do not amount to publication: Huth v Huth  3 KB 32. Neither does publication by one spouse to another: Wennhak v Morgan (1888) 20 QBD 635.
Also, the person to who the defamatory material was published must comprehend it to be defamatory. Therefore. no publication will have occurred if the person(s) receiving the defamatory material have no knowledge of special facts which would allow for knowledge of its defamatory meaning: Cross v Denley (1952) 52 SR (NSW) 112.
Every time the defamatory material is repeated or again communicated it will have been republished. Each republication results in another cause of action: Truth (NZ) Ltd v Holloway  1 WLR 997 at 1002.
A defendant bears the onus of proof of establishing any defences available under the law of defamation. If established, the defence will defeat the plaintiff’s claim to the extent that the defence applies.
Truth is a defence at common law, however in order for such a defence to succeed, the defamatory matter must be true in substance and effect: Howden v ‘Truth’ & ‘Sportsman’ Ltd 1937 58 CLR 416. Therefore, the defendant must prove that the meaning of the defamatory imputations are true and accurate in all except the most minor details, they must also prove the correctness of any inference that a reasonable person may draw from the matter: Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1.
Statements made in parliament cannot be the basis of any claim for defamation: Stockdale v Hansard (1839) 9 Ad & E1 at 114. This defence extends to documents produced in parliamentary debates (Holdings v Jennings (1979) VR 289) and speeches and statements by witnesses before a committee of parliament: Griffin v Donnelly 1881 6 QBD 307.
The common law also confers absolute privilege in judicial and quasi-judicial proceedings: Mann v O’Neill (1997) 191 CLR 204, including professional bodies such as the Solicitor’s Board: Hercules v Phease  2 VR 411.
Communications which are also protected by absolute privilege include the following:
The common law also confers qualified privilege in situations where the relationship between the parties is that the publisher has an interest such is paramount to the reputation of the plaintiff. Such situations include where there is a duty to communicate believed to be true to a person who has an interest in receiving the information, an interest of the speaker to a person honestly believed to have a duty to protect that interest, and a common interest in and reciprocal duty in respect of the subject matter of the communication between speaker and recipient.
The defence will be lost if the plaintiff proves malice. Malice is established if the defendant has used the occasion to publish the defamatory matter for a purpose other than that for which the privilege was given, or the defendant did not have an honest belief in the truth of what was published: Barbaro v Amalgamated Television Services Pty Ltd (1885) 1 NSWLR 30 at 50-4.
Qualified privilege extends to the publication of specified reports if they are fair and accurate. The defence is afforded to reports of judicial proceedings, reports of proceedings in parliament and reports of other bodies where there is public interest.
The implied right to political communication also extends the defence of qualified privilege. In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, the High Court extended qualified privilege to statements made in discussion of political and government matters. For the defence to be successful, the defamatory matter must be about government or political matters, the publication must be reasonable in all the circumstances and the defendant must not be actuated by malice.
Another common law defence is that of honest opinion. This may be established if:
The defence only applies to expression of opinion, not fact: Illawarra Newspapers v Butler  2 NSWLR 502, and the relevant test is whether a reasonable person would understand the statement to be the defendant’s opinion: Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245.
A publisher can also rely on the defence of innocent dissemination. His defence is available if a publisher can show they were not aware of the defamatory matter and published it through no negligence of their own.
At common law, the defence of triviality meant that if spoken words (slander) are such in the circumstances that the defendant is unlikely to suffer harm, the claim must fail.
If a plaintiff consents to the publication, this acts as a bar to a defamation claim: Cookson v Harewood  2 KB 478.
Section 24(1) of the Defamation Act 2005 provides that:
“A defence under this Division is additional to any other defence or exclusion of liability available to the defendant apart from this Act (including under the general law) and does not of itself vitiate, limit or abrogate any other defence or exclusion of liability.”
Section 25 of the Defamation Act 2005 provides that:
“It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.”
Section 26 of the Defamation Act 2005 provides that:
“26 Defence of contextual truth
It is a defence to the publication of defamatory matter if the defendant proves that:
(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (“contextual imputations”) that are substantially true, and
(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.”
Section 27(1) of the Defamation Act 2005 provides that:
“(1) It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege.”
Section 27(2) of the Defamation Act 2005 says that court proceedings and parliamentary proceedings are occasions of absolute privilege.
PUBLIC DOCUMENTS AND PROCEEDINGS OF PUBLIC CONCERN
Section 28 of the Defamation Act 2005 provides that:
“28 Defence for publication of public documents
(1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was contained in:
(a) a public document or a fair copy of a public document, or
(b) a fair summary of, or a fair extract from, a public document.”
Section 28(4) of the Defamation Act 2005 says that “public document” means:
“(a) any report or paper published by a parliamentary body, or a record of votes, debates or other proceedings relating to a parliamentary body published by or under the authority of the body or any law, or
(b) any judgment, order or other determination of a court or arbitral tribunal of any country in civil proceedings and including:
(i) any record of the court or tribunal relating to the judgment, order or determination or to its enforcement or satisfaction, and
(ii) any report of the court or tribunal about its judgment, order or determination and the reasons for its judgment, order or determination, or
(c) any report or other document that under the law of any country:
(i) is authorised to be published, or
(ii) is required to be presented or submitted to, tabled in, or laid before, a parliamentary body, or
(d) any document issued by the government (including a local government) of a country, or by an officer, employee or agency of the government, for the information of the public, or
(e) any record or other document open to inspection by the public that is kept:
(i) by an Australian jurisdiction, or
(ii) by a statutory authority of an Australian jurisdiction, or
(iii) by an Australian court, or
(iv) under legislation of an Australian jurisdiction, or
(f) any other document issued, kept or published by a person, body or organisation of another Australian jurisdiction that is treated in that jurisdiction as a public document under a provision of a law of the jurisdiction corresponding to this section, or
(g) any document of a kind specified in Schedule 2.”
Section 29 of the Defamation Act 2005 provides that:
““29 Defences of fair report of proceedings of public concern
(1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern.
(2) It is a defence to the publication of defamatory matter if the defendant proves that:
(a) the matter was, or was contained in, an earlier published report of proceedings of public concern, and
(b) the matter was, or was contained in, a fair copy of, a fair summary of, or a fair extract from, the earlier published report, and
(c) the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair.
(3) A defence established under subsection (1) or (2) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.”
Section 28(4) of the Defamation Act 2005 says that “proceedings of public concern” means any proceedings in public of a parliamentary body, any local government body in Australia, international body of governments, international conference of governments, International Court of Justice, or any court, judicial or arbitral tribunal or inquiry, learned society, sport or recreational association, trade association or public meeting of shareholders of a public company.
Section 30 of the Defamation Act 2005 provides that:
“30 Defence of qualified privilege for provision of certain information
(1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the “recipient”) if the defendant proves that:
(a) the recipient has an interest or apparent interest in having information on some subject, and
(b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and
(c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.
(2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.
(3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account:
(a) the extent to which the matter published is of public interest, and
(b) the extent to which the matter published relates to the performance of the public functions or activities of the person, and
(c) the seriousness of any defamatory imputation carried by the matter published, and
(d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and(e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and
(f) the nature of the business environment in which the defendant operates, and
(g) the sources of the information in the matter published and the integrity of those sources, and
(h) whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and
(i) any other steps taken to verify the information in the matter published, and
(j) any other circumstances that the court considers relevant.
(4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.”
Section 31(1)-(3) of the Defamation Act 2005 provides that it is a defence to the publication of defamatory matter if the defendant proves that:
(a) the matter was an expression of opinion of the defendant, an employee or agent of the defendant or another person rather than a statement of fact, and
(b) the opinion related to a matter of public interest, and
(c) the opinion is based on proper material.
Section 31(4) of the Defamation Act 2005 says that a defence under this section is only defeated if the opinion was not honestly held by the defendant at the time the defamatory matter was published, or if the defendant did not believe the opinion was honestly held by the person who expressed it.
Section 31(5) of the Defamation Act 2005 says that “proper material” means material that:
(a) is substantially true, or
(b) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law), or
(c) was published on an occasion that attracted the protection of a defence under this section or section 28 or 29.
In addition, Section 31(5) of the Defamation Act 2005 provides that “An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material”.
Section 32 of the Defamation Act 2005 provides that:
“(1) It is a defence to the publication of defamatory matter if the defendant proves that:
“(a) the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor, and
(b) the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory, and
(c) the defendant’s lack of knowledge was not due to any negligence on the part of the defendant.”
Section 33 of the Defamation Act 2005 provides that “It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm”.
Other statutes which are not concerned with the law of defamation can in some cases offer a potential defence to a defamation claim. A few examples include the following.
PARLIAMENTARY PRIVILEGES ACT
Section 10 of the Parliamentary Privileges Act 1987 (Cth) provides that:
“It is a defence to an action for defamation that the defamatory matter was published by the defendant without any adoption by the defendant of the substance of the matter, and the defamatory matter was contained in a fair and accurate report of proceedings at a meeting of a House or a committee.”
Section 16(1) of the Parliamentary Privileges Act enshrines article 9 of the English Bill of Rights, which in turn provides “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”. Meanwhile, section 16(3) of the Parliamentary Privileges Act provides that:
“In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:
(a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;
(b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or
(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.”
Section 197A(2) of the Child Protection Act (Qld) provides that a person acting honestly and reasonably is not liable, civilly or criminally for giving a notification or information concerning a child to the Department of Child Safety or the police. Section 197A(4) of the Child Protection Act 1999 further provides that “in a proceeding for defamation, the person has a defence of absolute privilege for publishing the information”.
Section 487(2) of the Legal Profession Act (Qld) provides that a person is not liable, civilly (including in an action for defamation), criminally or under an administrative process for making a complaint, or otherwise giving information to the commissioner, the law society or the bar association relating to the conduct of a lawyer, law practice employee or unlawful operator.
The common law elements of the tort of defamation remain unaffected by statute, save for the abolition of the distinction between libel and slander. Therefore, a plaintiff must still prove there was defamatory matter about which they were identified and which was published to persons other than themselves. The common law defences also remain in law. The state Defamation Acts do supplement the defences at common law, and in doing so provide defendants with greater access to various defences.
The laws of defamation apply to social media as much as they apply anywhere else:
A FORMER high school student has been ordered to pay $105,000 to a teacher for writing defamatory remarks about her on social media in what is believed to be Australia’s first Twitter defamation case to go to trial.
Former Orange High School student Andrew Farley, 20, made “false allegations” about music teacher Christine Mickle on Twitter and Facebook in 2012, a year after he had left school.
Mr Farley, who had never been taught by Ms Mickle, seemed to bear a grudge against the 58-year-old based on a belief that she had something to do with his father, also a teacher, leaving the school, District Court Judge Michael Elkaim said in his ruling.
“There is absolutely no evidence to substantiate that belief,” Judge Elkaim said. “The effect of the publication on the plaintiff was devastating.’’
Anyone who frequents Twitter (or other social media) on a regular basis would know that false and defamatory assertions are often made about people. In some ways it’s a surprise that it’s taken this long for such a case to result in an award of damages in Australia.
Another twitter defamation case that went to court is that of Liberal pollsters Mark Textor and Lyndon Crosby against former Labor MP Mike Kelly for a tweet Kelly published about push polling.
When people go on social media to rant, they would be well advised to be careful that they do not open themselves to liability for defamation. A right to rant is not the same as a right to defame.