Defamatory meaning and imputations: what the words are taken to mean

Most defamation disputes turn less on what a publication literally says than on what it is taken to mean. A plaintiff rarely complains that a sentence is false in its dictionary sense. The complaint is that an ordinary reader, taking the publication as a whole, would come away with a particular damaging impression. The law has developed a detailed framework for identifying that impression and deciding whether it is defamatory. The framework matters to both sides: it defines what a plaintiff must prove and what a defendant must justify or defend. Section references are to the Defamation Act 2005 (NSW) unless otherwise stated.

The general test

The High Court restated the test in Radio 2UE Sydney Pty Ltd v Chesterton. Matter is defamatory if it is likely to lead an ordinary reasonable person to think the less of the plaintiff.¹ Reputation, for this purpose, comprehends all aspects of a person’s standing in the community, and the same general test applies whether the imputation concerns a person’s character, their business or their profession.² An older formulation asked whether the words exposed the plaintiff to hatred, contempt or ridicule, but that came to be seen as too narrow. Matter that causes a person to be shunned or avoided may also be defamatory even where no moral blame is implied.³

The test is applied by reference to general community standards, not the standards of a particular section of the community.⁴ The hypothetical referees are ordinary reasonable people of ordinary intelligence, experience and education, who are fair minded and not avid for scandal, and who bring their general knowledge and experience of worldly affairs to the matter.⁵ The phrase “right thinking members of society”, used in the classic English formulation, does not mean that the referees apply their own moral code. It describes people who share and apply the standards of the general community, and it excludes standards that the community would regard as wrong.⁶ That does not mean moral standards are irrelevant. Where the nature of the imputation calls for it, the ordinary reasonable reader may be expected to draw on shared moral or social standards to decide whether reputation has been injured.⁷

The ordinary reasonable reader

Because the question is what the publication would convey to ordinary readers, the courts have built up a description of the hypothetical reader against whom meaning is tested. The High Court in Favell v Queensland Newspapers Pty Ltd adopted Lord Reid’s description: the ordinary reader does not live in an ivory tower and is not inhibited by a knowledge of the rules of construction, so he or she can and does read between the lines in the light of general knowledge and experience of worldly affairs.⁸ Ordinary readers draw implications much more freely than lawyers, especially derogatory ones. A statement of suspicion does not as a matter of law impute guilt, but in practice it very often does, because it is the broad impression conveyed that counts rather than the meaning of each word under analysis.⁹

In Trkulja v Google LLC the High Court described the exercise as one of envisaging a reader at the midpoint of the range of temperaments and abilities, since ordinary people range from the unusually suspicious to the unusually naive, and on that basis deciding the most damaging meaning that ordinary reasonable people at that midpoint could put on the matter.¹⁰ The ordinary reasonable person is not a lawyer who examines the publication over zealously but someone who views it casually and is prone to a degree of loose thinking, and who takes into account the emphasis given by conspicuous headlines or captions. Where words are imprecise, ambiguous or loose, a very wide latitude is given to the ordinary person to draw adverse imputations.¹¹

Two limits are worth emphasising. First, the reader is taken to have read the whole publication, not merely the headline or the passage complained of.¹² Second, there is a distinction between what the reader understands the publication to be saying and the conclusions the reader might reach because of their own beliefs and prejudices. Only the former counts. A publication is not capable of carrying an imputation merely because it excites in some readers a prejudice from which they go on to think badly of the plaintiff.¹³ In Mirror Newspapers Ltd v Harrison, the High Court applied that distinction to hold that a report which does no more than state that a person has been arrested and charged is not capable of imputing that they are guilty. The ordinary reasonable reader is mindful of the presumption of innocence and knows that guilt is a matter for a court. Such a report may, however, impute that the police suspected the person and had reasonable cause to do so.¹⁴ By contrast, a report of a charge or investigation that is accompanied by an account of the suspicious circumstances pointing towards guilt may be capable of imputing guilt.¹⁵

Imputations

An imputation is a defamatory meaning that the plaintiff says the publication conveys about them, expressed as a short statement in the plaintiff’s own words. Imputations are the currency of a defamation case. Under the uniform Acts a plaintiff has a single cause of action for a publication even if it carries several imputations,¹⁶ but each imputation is tested separately, and each defence is assessed against the imputations found to be carried. A concerns notice must inform the publisher of the imputations the aggrieved person considers are or may be carried,¹⁷ and proceedings cannot be commenced on imputations that were not particularised in the concerns notice, unless they are substantially the same.¹⁸

Drafting imputations is therefore the single most consequential task in preparing a claim. An imputation pitched too high may not be found to be conveyed, or may be easier to defend as true in a lesser form. An imputation pitched too low may be conveyed but fail to capture the sting that caused the harm, and may open the door to a defence of contextual truth based on more serious meanings that the publication also carries. Defendants and their advisers scrutinise imputations for form, for whether they differ in substance from one another, and for whether the publication is capable of carrying them at all.

Natural and ordinary meaning and innuendo

Imputations arise in two broad ways. The natural and ordinary meaning of a publication is the meaning that ordinary reasonable readers would take from it without any special knowledge. It includes not only the literal meaning but also inferences and implications that such readers would draw by reading between the lines. Lawyers sometimes call an implied meaning of this kind a false innuendo, though it is simply part of the natural and ordinary meaning.

A true innuendo is different. It is a meaning that arises only because some readers know facts outside the publication. A statement that a person was seen entering a particular building is innocent on its face but may be defamatory to readers who know what happens in that building. A plaintiff relying on a true innuendo must plead and prove the extrinsic facts, prove that the matter was published to people who knew those facts, and show that those readers could reasonably have drawn the defamatory meaning. The requirements mirror those for identification by extrinsic facts, which are discussed in the article on identification. A common illustration is Mirror Newspapers Ltd v World Hosts Pty Ltd, where a headline about a restaurant owner’s bankruptcy was held capable of conveying to readers who knew which company owned the restaurant that the company was in financial difficulty.¹⁹

Capacity and meaning

The determination of meaning involves questions of two kinds. Whether the publication is capable of conveying a pleaded imputation, and whether that imputation is capable of being defamatory, are questions of law for the judge. Whether the imputation is in fact conveyed, and is in fact defamatory, are questions of fact for the jury where there is one, or otherwise for the trial judge.²⁰

The capacity question is approached generously. In Favell the High Court said that whether a pleading should be struck out as incapable of conveying a meaning depends on the degree of assurance with which the conclusion can be reached, and that the step is not to be undertaken lightly.²¹ In Trkulja the Court described the exercise as one in generosity not parsimony; the question is not what the words in fact say but what a jury could reasonably think they convey.²² The NSW Court of Appeal in Corby v Allen & Unwin Pty Ltd explained why: a ruling that a publication is incapable of carrying an imputation deprives the plaintiff of the chance to present that meaning to the tribunal of fact, so a high threshold of exclusion applies.²³

The question of actual meaning is answered differently. The Full Federal Court in Bazzi v Dutton emphasised that once the tribunal of fact applies the objective test, there is no range of acceptable answers. A publication either conveys a meaning or it does not.²⁴ This is the practical content of the single meaning rule: a court identifies the one meaning the hypothetical ordinary reasonable reader would take from the publication, even though real readers would in fact vary.

Context, headlines and antidotes

The reader considers the publication as a whole and in context, but is not required to give equal weight to every part. McHugh J put it this way in John Fairfax Publications Pty Ltd v Rivkin. The reasonable reader tries to strike a balance between the most extreme and the most innocent meaning. If something disreputable is stated in one part of the publication but removed by the conclusion, the bane and antidote must be taken together. Yet the emphasis supplied by conspicuous headlines, headings and captions is legitimately taken into account, and contrary statements in an article do not automatically negate its defamatory statements.²⁵

Whether an antidote has in fact neutralised the bane is ordinarily a question for the tribunal of fact, and it is rare for a court to conclude at the capacity stage that the antidote swamps the bane.²⁶ Headlines, posters and other summaries that are read on their own may also carry their own meaning. In Hockey v Fairfax Media Publications Pty Ltd, White J found that a newspaper poster reading “Treasurer for Sale” and two tweets conveyed an imputation of corruption, while the articles they promoted, read as a whole, did not. Readers of the poster who did not go on to read the article would not have had their initial understanding corrected.²⁷ A tweet containing a hyperlink can be assessed on its own because not every reader will follow the link.²⁸

Sarcasm, jokes and exaggeration are assessed on the same principles. The question is whether the ordinary reasonable reader would take the words seriously as conveying a defamatory meaning, or would recognise them as banter or obvious hyperbole. Courts do not take a narrow view of the meaning conveyed by words that are imprecise, loose or fanciful, so humour is not a safe harbour.²⁹ The more sensational the publication, the less analytical care the reader is expected to bring to it, whereas readers of serious publications are taken to read more cautiously.³⁰

Social media

Australian courts have adopted the approach of the United Kingdom Supreme Court in Stocker v Stocker to social media publications. Lord Kerr said that the judge deciding how a Facebook post or a tweet would be interpreted must keep in mind the way such postings are made and read: it is a casual medium, in the nature of conversation rather than carefully chosen expression, and one in which the reader reads and passes on. It is wrong to engage in elaborate analysis or to parse a post for its theoretically deducible meaning.³¹ In Bazzi v Dutton the Full Federal Court quoted and applied those passages. Rares and Rangiah JJ held that the ordinary reasonable reader of a tweet reads it impressionistically and as a whole, including any extract from a linked article that forms part of it,³² and Wigney J observed that such a reader would not pause and reflect on each word but would read quickly and scroll on.³³ On that basis the Full Court held that the tweet “Peter Dutton is a rape apologist”, posted with an extract from a news article, did not convey the imputation that Mr Dutton excused rape, and set aside the judgment below.

The impressionistic approach cuts both ways. It discourages plaintiffs from building elaborate meanings out of short posts, but it also means that a casual reader is quick to draw derogatory inferences from loose language, and emphasis, hashtags and images can carry weight. Each post is assessed in the context in which it appeared, including the conversation it was part of and what the reader could see on screen.

Getting advice

Deciding what a publication means, and framing imputations that capture the real sting without overreaching, requires judgment informed by the case law. A plaintiff who misjudges the meaning may lose on capacity, be confined to a weak meaning, or hand the defendant a contextual truth defence. A publisher who misjudges the meaning may defend the wrong proposition. Harris Defamation Lawyers advises plaintiffs and defendants across Australia on the meanings a publication is likely to carry and on how imputations should be framed or answered.