1. Consider standing 2. Consider the three elements to make out a prima facie case 3. Consider defences 4. Consider remedies

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1 TOPIC 1 ESTABLISHING DEFAMATION 1. Consider standing 2. Consider the three elements to make out a prima facie case 3. Consider defences 4. Consider remedies INTRODUCTION The law of defamation is balanced between freedom of expression and protection of honour and reputation Defamation laws resolve the tensions by giving those who claim their reputations have been damaged or disparaged a right to sue but protect freedom of expression by providing a series of defences to that action that may trump a persons right to have an untarnished reputation A persons right of freedom of expression and his or her right to a reputation is recognised in the Charter of Human Rights and Responsibilities act 2006 (Vic) Section 15 protects the right to freedom of expression Section 12 provides that every person has the right not to have his or her reputation unlawfully attacked Truth alone provides a complete defence to an action for defamation UNIFORM DEFAMATION LAWS In Victoria, the model defamation provisions are contained in the Defamation Act 2005 (Vic) ELEMENTS OF THE TORT OF DEFAMATION At common law, the tort of defamation is committed when the defendant publishes spoken, written or other matter which disparages the plaintiffs reputation The plaintiff has the burden of establishing three elements 1. Defamatory matter; 2. Reference to the plaintiff; and 3. Publication to a third party WHAT IS DEFAMATORY MATTER HOW MAY A DEFAMATION BE EXPRESSED OR CONVEYED A defamation may be conveyed by spoken or written words, pictures, gestures, signs and other visible, non verbal representations

2 LIBEL OR SLANDER Libel refers to defamatory material that is in a permanent form (eg. writing) Slander refers to impermanent defamatory material (eg. spoken word) Libel was action per se, that is without proof of damage whereas, slander generally required a plaintiff to prove damage Following the enactment of the uniform defamation laws, all defamation is actionable without proof of special damage, regardless of whether it would have been classified as libel or slander at common law Section 7 of the Defamation Act 2005 (Vic) THE FIRST ELEMENT DEFAMATORY MATTER A plaintiff seeking damages for defamation must be able to point to defamatory meaning, or meanings, which he or she alleges have been conveyed The judge is to decide, as a question of law, if the matter alleged is capable of conveying the defamatory meaning(s) relied on by the plaintiff and whether that meaning(s) is capable of being defamatory. A judge will decide whether an ordinary reasonable person could (would not) regard the words as defamatory The court will ascribe to the words those meanings which ordinary people s neither extremely suspicious nor extremely guideless could regard as defamatory Interpretation reached through the ordinary reasonable persons understanding of the words The ordinary reasonable person is taken to be a person of average intelligence who approaches the interpretation of the publication in a fair and objective manner It is necessary for the court is identify one single meanings that would be given to the words by the ordinary reasonable reader known as the single meaning rule The court will identify the one single meaning for that imputation that would be held by the ordinary reasonable reader Farwuhar v Botton & Anor (1980) where words used are imprecise, ambiguous, loose fanciful or unusual a wide degree of latitude will be given to the capacity of matter complained of to convey particular imputations The single meaning rule requires that the court must determine whether the matter is capable of being understood in a defamatory sense, or only in a non defamatory sense MEANINGS PUT TO THE JURY

3 Any meanings which are considered to be in capable of being conveyed by the matter complained of, or incapable of being defamatory, will not be put to the jury However, those meanings which are pleaded by the plaintiff and which are considered capable of being defamatory by the judge will go to the jury, who then decide whether the statements are, in fact, defamatory of the plaintiff In applying the first element of the tort of defamation, first we identify the imputations by the potentially defamatory matter, and then secondly, we identify whether they are in fact defamatory A plaintiff may be defamed not only b direct statements but also by meanings or statements which are implicit in the words or other representations used Consequently, a jury may be asked to consider if the plaintiff has been defamed as a result of; The ordinary and direct meanings of the words used, including any popular or false innuendos which may be drawn form the words used, that is, secondary meanings arising from within the matter itself (reading between the lines) Any legal or true innuendos which may be drawn from the words used in conjunction with extrinsic facts known to some persons to whom the matter is communicated THE LITERAL OR DIRECT MEANING Words can be directly defamatory that is the defamation lied in the literal meaning of the words themselves, without recourse to inference POPULAR OR FALSE INNUENDO Intrinsic meanings are referred o a popular or false innuendos which would popularly or likely be drawn from the words by ordinary persons without recourse to any extrinsic information or knowledge Popular innuendos contained in mater complained of do not give rise to a separate cause of action; as these meanings are considered to be part of the ordinary meaning of the words, they are pleaded in the alternative. LEGAL OR TRUE INNUENDO In addition to literal meanings and popular (false) innuendos which may be understood from the natural and ordinary meaning of the words used, other meanings may be understood by those people to whom the matter is published (publishees ) who possess additional information or further facts which are not known to other publishees, and which are not apparent from the published material. This is known as legal or true innuendo Legal innuendo is bets described as an illustration

4 Where legal innuendo is involved, the matter must be published to at least one person who has the extrinsic information giving rise to the legal innuendo This type of legal innuendo ma be the only one relied upon, because the words only become capable of a defamatory meaning where additional facts are known A legal innuendo theoretically gives rise to a separate cause of action; so there would be two separate causes of action, for example, where the words used are alleged to be defamatory both in their ordinary meaning and also on the basis that they contain a legal innuendo WHAT IS DEFAMATORY To be defamatory a matter must disparage the plaintiffs reputation, not simply hurt his or her feelings The test is whether the ordinary reasonable or the ordinary decent person, applying normal community standards, would think less of the plaintiff WHAT TYPE OF REPUTATION CAN BE INJURED All aspects of a person reputation and standing in the community private, social, business, professional, or trading reputation may be defamed DISPARAGMENT AS AN INDISPENSABLE REQUIREMENT Only imputation which disparage a persons reputation by imputing characteristics or behaviour to the plaintiff for which he or she is responsible are considered to be defamatory It is defamatory to impute that the plaintiff is a criminal, or associate with criminal, is a thief, a liar or a hypocrite This is because the person in question has control over the kind of conduct that have been attributed to them, and because it is conduct within their control, such statement are disparaging A person cannot be defamed by statement about physical characteristics over which they have no control, and for which no blame can be attached to them such as statement about their ethnicity or their personal appearance Where defamation of a business, professional or trading reputation is alleged, it must be proved that the matter defames the plaintiff reputation in his or her business, profession or trade False statement which injure the business itself (but do not affect its reputation) are not necessarily defamatory, although they may be actionable as an injurious falsehood The general rule in all jurisdictions is that matter is only actionable in defamation where it discredits the plaintiff by imputing characteristics to the plaintiff for which the plaintiff is to blame

5 There are however two exceptional situations which have been put forward as cases where the common law does not require blameworthiness 1. Where the imputation ridicules the plaintiff (casts the plaintiff in a ridiculous light) and 2. Where the imputation will tend to cause people to shun or avoid the plaintiff The ridiculous light exception applies where the material conveys the impression that the plaintiff is ridiculous in the sense of deserving to be laughed at or absurd THE SECOND ELEMENT IDENTIFYING THE PLAINTIFF The second element required to establish the tort of defamation is that the plaintiff is identified Matter is defamatory only if it is of and concerning the plaintiff An imputation is therefore, not defamatory unless the person to whom it is alleged to refer is identifiable by those who are exposed to the derogatory matter Identification is readily established if the person is referred to by name, but the use of the persons name is not essential in order for the matter to be found defamatory HOW MAY THE PLAINTIFF BE IDENTIFIED Where the plaintiff is not referred to by name, the test is whether the reasonable persons would reasonably believe the matter referred to the plaintiff If it is only people with extrinsic knowledge who would identify the plaintiff as the target, the plaintiff must establish that the material was published to at least one person with that knowledge who identified the plaintiff as the person referred to WHO MAY BRING AN ACTION STANDING TO SUE LIVING PERSONS Any individual may bring an action in defamation but only during his or her lifetime Reputation is considered to be personal, and therefore no liability lies for defaming the dead Furthermore, an action commenced by a living plaintiff will not survive if he or she dies before the matter is determined, as at common law a defamation action terminated upon the death of either party

6 Section 10 of the Defamation Act 2005 (Vic) provides that a personal representative of a deceased person cannot commence, continue or enforce a defamation action in relation to the publication of defamatory matter about a deceased person whenever published, nor can a defamation action be commenced, continued or enforced against a person who has died since publishing the matter A MEMBER OF A GROUP WHICH HAS BEEN DEFAMED A defamation cannot be brought by a group or class of persons without legal personality However, individual members of a group about which defamatory statements have been allegedly been made, may bring an action in limited circumstances It is the judge who must rule whether or not the defamatory matter is capable of referring to the plaintiff individually. This decisions will depend to a large extent on the sixe of the group Alternatively an individual may bring an action if he or she can establish that he or she is the person aimed at within the group which has been allegedly defamed A TRADING CORPORATION Section 9 of the uniform defamation laws now restricts the standing to sue of corporations. It prevents large corporations from bringing a defamation action Section 9(1) of the Defamation Act 2005 (Vic) provides that a corporation cannot commence an action in defamation unless it is an excluded corporation it is only excluded corporations that can sue Section 9(2) of the Defamation Act 2005 (Vic) provides the definition of an excluded corporation A corporation is an excluded corporation if (a) The objects for which it is formed do not include obtaining financial gain for its members or corporators; or (b) It employs fewer than 10 persons and is not related to another corporation and the corporation is not a public body The two limbs in (a) and (b) are alternatives. A corporation only need to satisfy one of them (as well as not being a public body) in order to be an excluded corporation, and therefore have the standing to sue in defamation In determining whether a corporation is related to another corporation, section 50 of the Corporations Act is to be applied Section 9(4) A corporation is related to another corporation where it is a subsidiary or holding company of that other corporation A corporation is a subsidiary of another corporation where that other corporation controls the composition of its board, is in a position to cast more

7 than half of the votes at its annual general meeting, or holds more than half of its issued share capital Section 9 does not affect the ability of an individual associated with a corporation from suing for example, a manager of a corporation Any action by such a (natural) person would however, have to relate to their own reputation, for example, their own professional reputation The Defamation Act 2005 (Vic) Section 9(5) provides that subsection (1) does not affect any cause of action for defamation that an individual associated with a corporation has in relation to the publication of defamatory matter about the individual even if the publication of the same matter also defames the corporation LOCAL COUNCILS Section 9 of the Defamation Act 2005 (Vic) provides that a public body (defined in S 9(6) as a local government body or other governmental or public authority constituted by or under a law of any country is not entitled to bring a cause of action in defamation Local councils therefore have no standing to sue in defamation as they can never constitute an excluded corporation THE THRID ELEMENT PUBLICATION WHAT AMOUNTS TO PUBLICATION The mere creation of defamatory material, of or concerning another is not actionable in itself The tort of defamation is not complete until the third element is satisfied, that is, the matter must be published Publication in this sense means communication, by whatever means, of the allegedly defamatory meaning, to at least one person other than the plaintiff, who is capable of understanding the defamatory meaning PUBLICATION OF LEGAL INNUENDO & IDENTIFYING THE PLAINTIFF Where the imputation is raised as a matter of legal innuendo or where the plaintiff is not expressly named in the material, the plaintiff must show that the material has been published to at least one person with the relevant extrinsic information (or who would identify the plaintiff) REPUBLICATION A person who repeats, or republishes defamatory material is at common law liable to the same extent as the originator of the matter

8 There are exceptions in that some repetitions may be protected by privilege or statute Where that protection does not apply, liability cannot be avoided simply by disclaiming responsibility as the source of the statement being repeated A hearsay statement is the same as a direct statement WHICH JURISDICATION TO BRING A SUIT At common law the plaintiff has a cause of action in each state or territory where publication is proved and could choose the jurisdiction subject to relevant rules of civil procedure, with the most favourable defamation law However, the uniform defamation laws will not apply to a publication made overseas, which is litigated in an Australian court THE DEFENCE OF INNOCENT DISSEMINATION All parties involved in the dissemination of defamatory matter even if they did not create it are considered to have published the matter Editors, printers, booksellers, newsagents and a whole range of parties may be liable Some of these persons, often referred to as mechanical distributors or subordinate distributors may be able to escape liability if they can establish that they did not know, nor had the means of knowing that the material they were disseminating was defamatory Section 32 of the Defamatory Act 2005 (Vic) now contains a defence of innocent dissemination that is largely reflective of the common law defence Section 32 provides that is will be a defence for the defendant to prove that it 1. Published the material in the capacity of a subordinate distributor or as an employee or agent of a subordinate distributor; and 2. Did not know nor ought reasonably to have known that the matter contained defamatory imputations; and 3. Was not negligent in failing to know that the material contained defamatory imputations A person who will constitute a subordinate distributor is defined in section 32(2) A person will be a subordinate distributor if they were not the first or primary distributor of the matter they were not the author or originator of the matter and they were not capable of controlling the content or publication of the matter before it was published section 32(2) Section 32 specifically provides that persons such as newsagents, bookshops, printers and other retailers and wholesalers are not primary distributors of the matter merely because they are involved in its publication section 32(3) Section 32 of the Defamatory Act 2005 (Vic) regulates the position of radio and television broadcasts

9 That section in S 32(3)(e) provides that a person who broadcasts a live radio or television programme will not be treated as a primary distributor where it has no effective control over the person who actually makes the statements Thus this would protect a broadcaster that broadcasts a syndicated live television or radio show that is produced by a separate media company The key here is whether there is any control over the material being broadcast CYBER LIBEL There are no special rules for online defamation Accordingly persons are potentially liable for defamatory material that they post online, for example on blogs, in discussion forums, on websites, on Facebook or by Twitter or Section 32 of the Defamation Act 2005 (Vic) will exempt ISP from liability where it was not the author or originator of the matter and did not have the capacity to exercise effective control over the matter - S 32(3)(g) Thus an ISP which merely hosts a web site or facilitates the sending of an , will be protected by this defence provided that the ISP did not know and ought to have not known that the material contained defamatory statements Search engine providers can potentially avail themselves of the defence of innocent dissemination EXAM SUMMARY NOTES Contravention of S 18 ACL = Remedy S 236 (damages) S 237 (Remedial orders) Contravention of Part 3-1 ACL = Criminal Sanctions Part 4-1 ACL Contravene Part 3-2 = Remedy S 271 & S 272 ACL S 18 and Part 3-1 (S 29) may overlap Part 3-1 of the ACL = S 29 CONTRAVENTION OF 18 ACL & PART 3-1 (S 29) S 18 & S 29 (Part 3-1) imposes a strict prohibition; generally there is no intention to mislead or other fault requirement (S & I Publishing Pty Ltd v Australian Surf Life Saver Pty Ltd) The applicant normally bears the burden of proof and must establish the contravention on the balance of probabilities

10 Once the applicant has proved that such a representation was made S 4(1) of the ACL shifts the burden of proof to the respondent. Liability will the arise unless the respondent proves that its conduct was not misleading or deceptive by showing that it has reasonable grounds for making the representation in question ANSWER GUIDELINES: 1. A relevant person/corporation 2. Conduct in trade or commerce 3. Conduct that is misleading or deceptive, or is likely to mislead or deceive (CONTEXT) + (CONDUCT) 4. Defences 5. Remedies