Basic Elements
Defamation is the act of someone publishing defamatory matter about another. This defamatory matter can be in many forms including but not limited to verbal, written, online, and video. To bring a defamation claim, the publication must meet the following requirements:
- It must be defamatory;
- It must identify the Plaintiff; and
- It must have been published to a third party.
Where there is a trial with a jury, the role of the jury is to determine whether the matter published by the Defendant is, in fact defamatory. This is detailed in Section 22(2) of the Defamation Act 2005.
What is Defamatory Material?
Defamatory material refers to publication by the Defendant relating to the Plaintiff which would tend to lower their reputation “…usually by bringing the person into hatred, contempt or ridicule”[1].
In the case of Queensland Newspapers Pty Ltd v Palmer[2], Justices Boddice, McMurdo and Muir agreed in stating that the meaning attached to defamatory imputations is determined by how the ordinary, reasonable reader would interpret the published matter. They further stated:
“… [A]ny strained, or forced, or utterly unreasonable interpretation must be rejected. The ordinary reasonable reader is a person of fair, average intelligence who is neither perverse nor morbid nor suspicious of mind nor avid of scandal. However, that person does not live in an ivory tower but can, and does, read between the lines in light of that person’s general knowledge and experience of worldly affairs. The ordinary reasonable reader considers the publication as a whole, and tends to strike a balance between the most extreme meaning that the publication could have and the most innocent meaning.”
Defamatory material can be words written, words spoken, audio-visual material such as a documentary, film or television broadcast, a radio broadcast, a cartoon, a caricature, a statue or an effigy, a photograph, or a painting.
The Material Must Identify the Plaintiff
The defamatory material must have sufficient information to enable a third person to identify it as being about the Plaintiff. There have been numerous cases of the wrong person being identified. For example, newspaper articles have been published about people but have the photograph of another person next to it. That has been held to be defamatory of the person in the photograph when taken in context of the words in the article. The name of the Plaintiff need not be published. For example, in one case the Plaintiff was identified as being a man who lived at a certain address[3].
It is not necessary that the Defendant intended to identify the Plaintiff in the defamatory matter[4]. Identification can be made by innuendo or reference to extrinsic material. For example, in the case of Pedavoli v Fairfax Media Publications Pty Ltd[5]the Sydney Morning Herald published an article about a female in her late twenties who taught English and Drama at a particular high school. The article stated that she was a sexual predator and had had inappropriate sexual encounters with students. The article did not name the teacher however, the public incorrectly identified the Plaintiff as the person the subject of the article when viewing the school’s website. The Plaintiff in that case was successful in being awarded damages of $350,000.
The Material Must be Published to a Third Party
Publication is a question of fact to be determined by a jury (if there is one) or the judge, if the trial is before a judge sitting alone. It is for the Plaintiff to prove, on the balance of probabilities, that publication has occurred. Publication has to be made to at least one third party. For example, in Armstrong v McIntosh[6], private text messages between the Defendant and the Plaintiff were shared with just one other person, the Defendant’s friend, and the Court held that defamation had occurred, awarding the Plaintiff damages.
Where the publication is by a newspaper or magazine article or something is uploaded to the internet for the public to see then it is easy to establish that publication has occurred. The Court looks at all the circumstances of the case. If other forms of media are used to publish the defamatory matter such as an effigy or painting it can sometimes be unclear as to whether liability should be found. In Webb v Bloch[7], Justice Issacs described publication as:
“[to] publish a libel is to convey by some means to the mind of another the defamatory sense embodied in the vehicle.”
In Monson v Tussauds Ltd[8], the Plaintiff sued in relation to a wax statue of him that was displayed in the “Chamber of Horrors” at Madame Tussaud’s famous wax museum in London. He had been the subject of a verdict of “not proven” in a Scottish murder trial.
Who is a Publisher?
The publisher must have primary responsibility for the publication of the matter. For example, bookshops, including online bookshops, newsagents and libraries are publishers but they are able to use the defence of innocent dissemination.
A person can be held to be a publisher of defamatory material if they failed to stop the distribution of the defamatory matter. For example, in Bishop v New South Wales[9], it was found that a headmaster’s failure to stop a defamatory sketch by students at a high school amounted to publication by the Principal.
Likewise, in Urbanchich v Drummoyne Municipal Council[10], a local Council was held to be the publisher of defamatory material by allowing posters to be affixed to bus shelters. The posters imputed that the Plaintiff, a political candidate, was a Nazi supporter. The Court held that it was required that the Council had actual knowledge of what was displayed to the public in the posters.
Similarly, in the cases of Voller v Nationwide News Pty Ltd[11] and Stoltenberg v Bolten[12], liabilities were imposed on the administrators of public Facebook pages who allow defamatory posts to be posted[13].
In Bailey v Bottrill (No 2)[14], the Defendant published a hyperlink which sent the recipient to a YouTube page which contained defamatory material about the Plaintiff. The Defendant’s argument that she was not the primary publisher, failed. In coming to the conclusion, the Court held that the Defendant posting the active hyperlink on her personal Facebook page along with brief description of the content constituted publication for the purposes of defamation. The Court’s reasoning was that the Defendant had complete control over the content of her Facebook page and was the author of the post which contained the hyperlink to the publication, which established intent to communicate the defamatory material[15].
In Trkulja-v-Google LLC[16], the Court established that in determining whether someone has published material containing defamatory imputations, there is a requirement to first establish that the Defendant , in fact, participated in publishing the material.
Likewise, in Visscher-v-Maritime Union of Australia (No 6)[17], an online journal article which included a hyperlink to a defamatory newspaper article was held to be publication of defamatory matter.
In the case of Urbanchich v Drummoyne Municipal Council[18], the Court determined that in the circumstances where someone has published another’s defamatory statement, which is physically attached to their property, the Plaintiff is required to prove that the Defendant had “… more than mere knowledge …[19]” that the statement existed and an opportunity to get rid of it. The Plaintiff is also required to prove that the Defendant consented, approved, adopted, promoted, or ratified the existence of the defamatory material on the property.
In certain circumstances, a Defendant can be held liable for the republication of defamatory material by third parties. In Speight-v-Gosnay[20], the Court found that an original publisher may be held liable for a third party’s republication of defamatory matter where:
- The original publisher authorised republication;
- The third party’s republication was the natural and probable consequence of the initial publication; and
- The original publisher communicates the defamatory matter to a third party who is under a moral obligation to republish it.
Publication can also occur where a third party intercepts the communication, even if it was not intended by the original publisher. For example, in Williamson-v-Freer[21], the Court found that a telegram was published because it was necessary for the clerks who communicated the telegrams to read them in order to transmit the communication.
However, accidental, or mistaken publication cannot be publication for the purposes of a defamation claim. In Pullman-v-Walter Hill & Co Ltd[22] Lord Esher MR provided an example of a situation where a publication was not established. He referred to a publisher who has written a defamatory letter and locks it away. If a thief breaks open the lock and obtains the letter, even while the letter may be read by a third party, the publisher is not considered to have made a publication[23].
Publication of defamatory matter can be in a foreign language, provided that at least one person who understood the language that the defamatory matter was published in and has read the material. In Zaia-v-Eshow[24], a former parishioner made numerous comments on Facebook, including posts in the Arabic language, about an Archbishop. The comments imputed that the Archbishop had failed the church by being evil, worse than ISIS, violent, a drunk, dishonest, and incompetent. Despite the language barrier the Archbishop was awarded damages of $150,000.
Publication on the internet has held to occur at the place where the recipient downloads the material, not where the publisher uploads the material[25]. This is important for determining the jurisdiction in which to start proceedings for a defamation claim.
