Gossip, rumours and repeating allegations: when passing it on is defamation

Much defamatory material does not start with the person who ends up being sued. It starts as a rumour, a complaint, an overheard remark or a post by someone else, and is then repeated: in a conversation, a group chat, a reply, a share or a “just asking questions” post. People who repeat material often assume they are safe because they did not invent it, attributed it to someone else, or hedged it with “allegedly”. The law takes a different view. This article explains how defamation law treats gossip, rumour and repetition, and what the person repeating an allegation can and cannot rely on.

Section numbers are those of the Defamation Act 2005 (NSW), which Queensland, Victoria, South Australia and Tasmania share for the provisions discussed. The Australian Capital Territory and Northern Territory provisions are numbered differently, and Western Australia has not adopted the 2021 reforms.

Spoken gossip is defamation too

Historically, spoken defamation (slander) was harder to sue on than written defamation (libel), because the plaintiff usually had to prove financial loss. The uniform legislation abolished that distinction: s 7 provides that the publication of defamatory matter of any kind is actionable without proof of special damage.¹ A remark at a barbecue, a comment in a staff kitchen or a phone call to a mutual acquaintance is therefore actionable on the same footing as an email or a post.

The practical differences lie in proof and in harm. A spoken statement must be proved by evidence of what was said and who heard it, which often turns on the credibility of a small number of witnesses. In every jurisdiction except Western Australia, the plaintiff must also prove that the publication has caused, or is likely to cause, serious harm to their reputation.² A single remark to one listener who thought nothing of it will rarely meet that test; a rumour that has demonstrably circulated through a workplace, a school community or a sporting club may.

Repeating an allegation is publishing it

The starting point is that a person who repeats defamatory matter is a publisher of it. The High Court in Fairfax Media Publications Pty Ltd v Voller confirmed the long standing rule that anyone who participates in or intentionally lends assistance to the communication of defamatory matter to a third party is a publisher.³ It does not matter that the material originated elsewhere.

The law goes further. As McHugh J explained in John Fairfax Publications Pty Ltd v Rivkin, the general rule is that a person who publishes the defamatory statement of a third party adopts the statement and has the same liability as if the statement originated from the publisher; it is not the law that a person reporting the defamatory statement of another is liable only if they adopt or reaffirm it.⁴ This is sometimes called the repetition rule. It is not a rule of invariable application, because the context may show that the allegation is refuted or undermined by other parts of the publication, but the exception is narrow.⁴

Two consequences follow for anyone who passes on a story. First, attributing it to someone else (“the manager told me”, “everyone in the office is saying”) does not avoid liability. Second, if the repeater wishes to defend the statement as true, they must prove the truth of the underlying allegation, not merely that it was made. The defence of justification requires proof that the defamatory imputations carried by the matter are substantially true.⁵ An imputation that a person committed fraud is not made substantially true by evidence that a colleague said so.

“Allegedly”, “rumour has it” and “I heard”

Hedging language affects the meaning a publication conveys, but seldom as much as the speaker hopes. In Favell v Queensland Newspapers Pty Ltd, a newspaper reported a fire at a barrister’s house alongside details of a controversial development proposal for the site and the fact that police were investigating. The High Court held that the article was capable of conveying that the owners had committed arson and that police reasonably suspected them of it. The joint judgment observed that a mere statement that a person is under investigation may not be enough to impute guilt, but that if it is accompanied by an account of suspicious circumstances pointing towards a likelihood of guilt, the position may be otherwise, and adopted Lord Devlin’s warning that “loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded”.⁶ The ordinary reasonable reader “can and does read between the lines in the light of his general knowledge and experience of worldly affairs”.⁶

The same approach applies to gossip. “I’m not saying he did it, but ...” followed by a list of suspicious circumstances will usually be understood as saying that he did it. A message that a person is “apparently” or “allegedly” a thief conveys, at the least, that there are reasonable grounds to suspect them of theft, and that lesser imputation is itself defamatory and must itself be justified. By contrast, the High Court held in Mirror Newspapers Ltd v Harrison that a report which does no more than state that a person has been arrested and charged is incapable of imputing guilt, because the reader’s own conclusions from the fact of a charge are distinguished from what the publication itself says.⁷ The line between a neutral report of an event and a repetition of an accusation is therefore real, but it is drawn by the overall impression conveyed, not by the presence of a qualifying word.

Sharing, liking and linking online

Online repetition is governed by the same principles, applied to different mechanisms.

Reposting or sharing defamatory material to one’s own followers, forwarding it to a group or quoting it in a reply is publication. Following Voller, a person who operates a page or group on which others post can also be a publisher of those comments, because they facilitate and encourage their communication.³

Merely “liking” a post is different. In Bolton v Stoltenberg, a councillor had liked 64 posts on a community Facebook page attacking the mayor. On the evidence in that case, the likes alone did not make her a publisher of those posts. The court left open whether a like that pushed a post into other users’ feeds might be treated differently. She was liable for one post because she added a comment endorsing it and urging others to like it.⁸

A bare hyperlink sits at the same end of the spectrum. In Google LLC v Defteros, the High Court held that a search result containing a hyperlink to a defamatory newspaper article did not make the search engine a publisher of the article. Kiefel CJ and Gleeson J described a hyperlink as a reference to another source which does not itself constitute publication of it, and as “content-neutral”, while noting that where the text accompanying a link endorses or adopts the linked content, the position may be different.⁹ Posting a link with the comment “this is what she really is” is therefore closer to repetition than to reference.

The grapevine and the question of harm

Repetition is also central to how courts think about the harm done by defamation. In Palmer Bruyn & Parker Pty Ltd v Parsons, Gummow J quoted Lord Atkin’s observation that it is “impossible to track the scandal, to know what quarters the poison may reach”, and explained that this “grapevine effect” may support a conclusion that a republication was the natural and probable result of the original publication, depending on the nature of the statement and the circumstances of its publication; it does not do so in every case.¹⁰ Where the grapevine effect is established, the original publisher may be liable for the harm done by repetitions as well as by the original.

The grapevine cuts both ways under the serious harm element. A plaintiff who can show that a rumour spread beyond its first audience, and that people who heard it thought less of them, will usually be able to prove serious harm. A plaintiff who cannot will often fail. In Rader v Haines, the New South Wales Court of Appeal upheld a finding of no serious harm where an email went to the plaintiff’s own parents and there was no evidence of reputational harm in any wider audience, including through the grapevine.¹¹ In Zimmerman v Perkiss, a message to a single recipient who did not believe or repeat the allegation failed the test, the court observing that in small scale publications it is the quality of the recipients rather than their number that tends to matter.¹²

Defences available to a repeater

A person who has repeated an allegation is not without defences, but each has conditions.

Truth requires proof that the imputation is substantially true, as explained above.⁵

Qualified privilege protects repetition on an occasion where the speaker has a duty or interest in communicating and the recipient a corresponding interest in receiving the information, provided the publication is not actuated by malice. The High Court in Cush v Dillon held that where an occasion of privilege extended to raising a rumour of an affair as a governance concern, the speaker’s error in presenting the rumour as fact did not take the statement outside the privilege.¹³ Passing on a concern to the person who can act on it, such as a manager, a school or the police, is the kind of repetition the privilege exists to protect. Passing the same story around a social circle is not.

Honest opinion under s 31 requires that the matter be an expression of opinion rather than a statement of fact, on a matter of public interest, based on proper material, meaning material that is set out, notorious, linked or apparent from context and that is itself substantially true or privileged.¹⁴ A rumour cannot be converted into a protected opinion by adding “in my view”; the opinion must rest on facts that can be proved.

Fair report under s 29 protects a fair report of proceedings of public concern, such as court proceedings, and s 28 protects fair copies, summaries and extracts of public documents.¹⁵ These defences protect accurate accounts of what was said in a protected forum; they do not protect an inaccurate or selective retelling.

Innocent dissemination under s 32 protects a subordinate distributor who was not the author, originator or primary distributor and had no capacity to exercise editorial control before first publication, and who neither knew nor ought to have known that the matter was defamatory.¹⁶ In Bolton v Stoltenberg the page operator succeeded in this defence for a comment posted by another user, which he removed promptly when he became aware of it.⁸ The defence is unlikely to assist a person who deliberately reposts material they have read.

The public interest defence in s 29A requires that the matter concern an issue of public interest and that the defendant reasonably believed publication was in the public interest.¹⁷ It is directed to considered publications on matters of genuine public concern, and a court assessing reasonableness will look at the steps the publisher took to verify what they repeated.

Limitation and repeated publications

Each repetition is a separate publication with its own limitation period. In New South Wales an action must be brought within one year of publication, extendable to three years in limited circumstances, and the period is extended where a concerns notice is given within the last 56 days.¹⁸ The single publication rule, which treats a later publication of substantially the same matter as accruing on the date of the first publication, applies only where the later publication is by the first publisher or an associate of the first publisher; it does not apply to a different person who repeats the material, and it does not apply where the manner of the later publication is materially different.¹⁹ A plaintiff who is out of time against the original speaker may therefore still be in time against someone who repeated the allegation more recently, and a repeater cannot rely on the age of the original story.

Practical points

For a person who has been the subject of a rumour, the first task is to trace it: who said what, to whom, and when. Each person in the chain is potentially liable, but the serious harm element means that the useful defendants are those whose repetition reached people whose opinion of the plaintiff matters, and who believed it. A concerns notice must be given before proceedings are commenced outside Western Australia, and it should identify the specific words or posts and the imputations said to arise.²⁰

For a person who has repeated something and received a complaint, the questions are whether the underlying allegation can be proved true, whether the repetition was made to someone with a legitimate interest in receiving it, whether the words were a report or an adoption, and whether the material can be taken down and corrected now. An early offer to make amends, which must be made within 28 days of a concerns notice unless further particulars are sought, is a complete defence if the offer was reasonable and the plaintiff did not accept it.²⁰

Differences between jurisdictions

Western Australia has not enacted the 2021 reforms: there is no serious harm element, mandatory concerns notice, single publication rule or public interest defence in the form described above, and the triviality defence remains. The Australian Capital Territory and Northern Territory provisions are numbered differently. Limitation provisions sit in each jurisdiction’s limitation statute; in Queensland they are ss 10AA, 10AB and 32A of the Limitation of Actions Act 1974 (Qld).²¹

Getting advice

Whether a repeated allegation is actionable depends on exactly what was conveyed, to whom, on what occasion and with what effect. Those questions are easier to answer while the evidence of who said what is still fresh, and before a further round of repetition makes the harm, and the exposure, greater.