Reputation: what defamation law protects and what it does not

Defamation is the only tort whose entire purpose is the protection of reputation. Understanding what the law means by reputation, and what falls outside it, explains a good deal about how defamation cases are decided: why a devastatingly hurtful publication may not be actionable, why a person of poor standing may recover less than a person of good standing, and why damages are awarded for vindication as well as compensation. Section references are to the Defamation Act 2005 (NSW) unless otherwise stated.

Reputation as the esteem of others

The High Court in Radio 2UE Sydney Pty Ltd v Chesterton described the interest protected in simple terms. The common law recognises that people have an interest in their reputation, that it may be damaged by the publication of defamatory matter, and that a person’s reputation is injured when the esteem in which that person is held by the community is diminished in some respect.¹ Reputation, in other words, exists in the minds of other people. It is not the plaintiff’s own sense of worth, and it is not a fixed quality of the plaintiff. It is what others think.

Two consequences follow. First, a publication that nobody other than the plaintiff reads cannot damage reputation, which is why publication to a third party is an element of the tort. Second, the harm done depends on who received the publication and what they made of it, which is why the extent of publication, the identity of the recipients and their reaction are central to serious harm and to damages. As the Full Federal Court observed in Latham v Greenwich, a person’s reputation exists in the minds of others and may not be uniform; a publication may seriously harm a person’s standing among some people while leaving it intact among others who know them well.²

Reputation and hurt feelings

Because reputation is the esteem of others, injury to feelings is not itself the wrong. A publication that causes great distress but does not lower the plaintiff in anyone’s estimation is not defamatory, and since 2021 the serious harm element has made this explicit: harm to reputation is required, and injury to feelings, however great, does not satisfy it.³

Once liability is established, however, the position changes. Damages for defamation include compensation for the hurt and distress the publication caused. The High Court in Carson v John Fairfax & Sons Ltd identified three purposes of damages, setting aside economic loss: consolation for the personal distress and hurt caused to the plaintiff by the publication, reparation for the harm done to the plaintiff’s personal and, if relevant, business reputation, and vindication of the plaintiff’s reputation.⁴ The first two are often considered together as consolation for the wrong done. Hurt feelings are therefore compensable, but only as a consequence of an actionable injury to reputation, not as a freestanding harm.

Vindication

Vindication is the purpose that distinguishes defamation damages from most other compensatory awards. Windeyer J explained in Uren v John Fairfax & Sons Pty Ltd that a person who has been defamed does not, properly speaking, get compensation for damaged reputation; they get damages because they were injured in their reputation. Compensation by damages then operates in two ways, as a vindication of the plaintiff to the public and as consolation for a wrong done.⁵ The idea is that the amount awarded must be sufficient to convince a bystander of the baselessness of the charge, so that the plaintiff can point to the verdict if the allegation is ever repeated.⁶

The uniform Acts preserve these purposes but constrain them. The court must ensure that there is an appropriate and rational relationship between the harm sustained and the amount of damages awarded.⁷ Damages for non economic loss are capped at a maximum amount, which is adjusted each year and from 1 July 2026 is $520,000; the maximum is to be awarded only in a most serious case, and aggravated damages are awarded separately and are not subject to the cap.⁸ The defendant’s state of mind is to be disregarded except to the extent that it affects the harm sustained,⁹ and exemplary or punitive damages cannot be awarded.¹⁰ Damages in defamation are compensatory, even where they serve to vindicate.

Business, professional and personal reputation

Reputation is not divided into separate compartments with different legal tests. Chesterton settled this. The concept of reputation in the law of defamation comprehends all aspects of a person’s standing in the community, and phrases such as “business reputation” or “reputation for honesty” may sometimes obscure that fact. The general test, whether the publication is likely to lead an ordinary reasonable person to think the less of the plaintiff, applies to an imputation concerning any aspect of a person’s reputation.¹¹ The Court rejected the view that imputations about a person’s business or professional conduct are to be judged by some different standard divorced from community values. Whether the imputation is that a person is dishonest, or that a tradesperson is incompetent, or that a professional is careless, the question is the same.¹²

That does not mean the content of the imputation is irrelevant. The community standards that the ordinary reasonable person brings to bear will vary according to the nature of the imputation, and an imputation about professional competence is assessed by reference to what the community expects of a person in that position.¹³ A person’s standing in their trade or profession is often the aspect of reputation that matters most to them and is most readily damaged. It is frequently the focus of evidence on serious harm and damages.

Bad reputation and the relevant sector

A plaintiff is taken to have the reputation they actually have, not a presumed good one. At common law a plaintiff does not need to prove that their reputation was good before publication, but a defendant may lead evidence that the plaintiff’s reputation was already bad, in mitigation of damages.¹⁴ Under the serious harm element, the Full Federal Court has gone further and held that s 10A removes any presumption of good reputation (if one existed at common law) along with the presumption of damage, so that a plaintiff may be expected to lead evidence of their existing reputation, while a defendant who asserts prior bad reputation bears the onus of proving it.¹⁵

Two rules confine evidence of bad reputation. The first, which Australian courts have applied since Scott v Sampson and Plato Films Ltd v Speidel, is that the evidence must be limited to general reputation; evidence of specific incidents of misconduct is inadmissible for this purpose.¹⁶ A defendant cannot put evidence of the plaintiff’s specific past misconduct before the court under the guise of reputation evidence. The second is that the evidence must relate to the relevant sector of the plaintiff’s reputation, meaning the aspect of reputation that the imputations are capable of harming. In Channel Seven Sydney Pty Ltd v Mahommed, a five judge bench of the NSW Court of Appeal held that identifying the relevant sector is a fact dependent exercise requiring careful analysis of the matter complained of, and that a defendant cannot pitch the sector at so high a level of generality, such as “dishonesty”, as to let in evidence unrelated to the sting of the imputations.¹⁷ One way of testing the point is to ask what evidence of good reputation the plaintiff could have called in answer.¹⁸

Mahommed also held that findings made against a plaintiff in other court proceedings, including findings made after the publication, may be admissible in mitigation where they are in the public domain and relate to the relevant sector, because the tribunal of fact should not be kept in the dark about the plaintiff’s reputation at the time damages are assessed.¹⁹ Damages are assessed as at the date of judgment, and reputation evidence is directed to the plaintiff’s standing at that time.

Convictions

Where the question whether a person committed an offence arises in defamation proceedings, proof that the person was convicted of the offence by an Australian court is conclusive evidence that they committed it, and a conviction by a foreign court is evidence of the same.²⁰ A plaintiff cannot use a defamation action to relitigate a conviction. The documents recording the conviction and the charge are admissible to identify the facts on which it was based,²¹ and a conviction includes a finding of guilt but not a conviction that has been quashed or pardoned.²²

The practical effect is that a person with a relevant conviction who sues over a publication referring to it will face a complete defence of truth on that imputation, and the conviction will also bear on their reputation in the relevant sector if other imputations survive. A person with a spent or old conviction unrelated to the subject of the publication is in a different position, and the conviction may be inadmissible as reputation evidence if it does not go to the relevant sector.

Abuse, insult and dignity

Not every offensive statement is defamatory. The tort is concerned with imputations: statements that attribute some act or condition to the plaintiff and are likely to lower them in the estimation of others. Words that merely express the speaker’s contempt or anger, without conveying anything about the plaintiff that others would hold against them, are commonly described as mere vulgar abuse and are not actionable. In Johnston v Aldridge, the South Australian District Court accepted that mere vulgar abuse or invective is not enough, and found that many of the comments on a Facebook post, read in isolation, would be taken by the ordinary reader as nothing more than vulgar abuse, though when read in the context of the post some of them took on a different colour and adopted the post’s defamatory imputations.²³

The line between abuse and imputation is one of impression. Calling a person an idiot in the heat of an argument conveys little about them. Calling a person a thief conveys a great deal, however angrily it is said. Context, medium and audience all matter, and the impressionistic approach that courts take to social media publications, discussed in the article on defamatory meaning, is particularly relevant here.

Nor does defamation protect privacy, dignity or peace of mind as such. A publication of true but private information, an intrusion into a person’s private life, or a humiliating but accurate disclosure may cause real harm without lowering the person in anyone’s estimation in a way the law will remedy through defamation, and truth is a complete defence to any defamatory imputation that is conveyed. Other causes of action, including breach of confidence and the statutory tort for serious invasions of privacy, may be relevant in those situations and are outside the scope of this article.

Getting advice

Two questions shape both liability and damages: whether a publication has damaged reputation, as opposed to feelings, and how the plaintiff’s existing standing affects the claim. A prospective plaintiff should expect to be asked about their reputation in the relevant sector and about any history that a defendant might raise. A publisher assessing a complaint should consider whether the material conveys an imputation at all, or is abuse or opinion, and whether the complainant’s standing is such that serious harm can realistically be proved. Harris Defamation Lawyers advises plaintiffs and defendants across Australia on these questions.