In defamation matters, harm to another’s reputation is what defamation claims attempt to restore. It refers to a person’s standing or how a person is viewed in society. Due to the fact that reputation is not tangible, a person’s damaged reputation cannot be quantified as it is unique to each individual and is therefore, assessed on a case-by-case basis.
Reputation: A Human Right
The International Covenant on Civil and Political Rights, to which Australia is a party, is a treaty that protects and respects civil and political rights of every individual. It recognises reputation as being a human right at Article 17, which states:
“1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.
However, the International Covenant on Civil and Political Rights is not enforceable in Australia, but it is supported by legislation. For instance, Article 17 which refers to reputation is implemented in the Privacy Act 1988. While similar implementations have been made in section 12 of the Human Rights Act (ACT) 2004, section 13 of the Charter of Human Rights and Responsibilities Act (Vic) 2006, and section 25 of the Human Rights Act (QLD) 2019.
Defamation and Reputation
In order to bring an action in defamation, the defamatory matter must have caused or had a likelihood of causing harm to the Plaintiff’s reputation. Defamatory matter refers to “…publication of matter which tends to lower a person’s reputation in the estimation of his or her fellows by making them think less of that person, usually by bringing the person into hatred, contempt or ridicule”1.
While often confused with one another, reputation and character differ. Lord Denning in Plato Films Ltd v Speidel2 briefly described the difference between the two as follows:
“[a] man’s ‘character’, it is sometimes said, is what he in fact is, whereas his ‘reputation’ is what other people think he is.”
Damage to reputation can be in terms of personal, private, or domestic life, public, social, professional, or business life or status or financial credit.
For example, in Queensland Newspapers v Palmer4, a prominent businessman in Brisbane sued the owners of the Courier Mail newspaper in relation to an article which appeared in a gossip column entitled “City Beat”. The article imputed that he was an incompetent businessman who had lost a lot of money.
Likewise, in Dow Jones & Co Inc v Gutnick5, a Victorian businessman sued for defamation in relation to an online magazine article which he said damaged his reputation as a businessman.
In contrast in Armstrong v McIntosh6, the Plaintiff successfully sued his former brother-in-law for text messages he sent to his friend imputing that he was “evil”. The Plaintiff in that case was a devout Catholic who attended mass regularly and his children went to the school connected with the church that he attended. The Plaintiff was only awarded nominal damages.
A recent case that was settled prior to trial, involved a Plaintiff and Defendant who were both members of the Brisbane Vietnamese community. The Defendant posted defamatory posts to her Facebook friends about the Plaintiff on a private Facebook page. The Plaintiff and the Defendant moved in the same circles within the community. In that case, the Plaintiff was successful in compensation for harm to her reputation.
Evidence of Good Reputation
Defamation law attempts to protect good reputation of people, which is determined by what other believe the estimation of a person to be. The following case is about the good reputation of a plastic surgeon.
In Haertsch v Channel Nine Pty Ltd7, the Plaintiff, a plastic surgeon, sued Channel Nine in relation to a segment on its “A Current Affair” program. The jury found that the broadcast program imputed, among other things, that he was an incompetent plastic surgeon. In the program, complaints were made by a woman who had consulted the Plaintiff for breast augmentation and enlargement of her breasts by way of silicone implants. She developed complications post-surgery and had to have one of the implants replaced twice. Complaints were also made by another woman who had asked the Plaintiff to remove both of her breasts as she wanted to be flat chested. The Plaintiff performed the surgery and was later disciplined by the Medical Board of Queensland for not referring her for psychiatric assessment prior to the operation or giving her a cooling off period. Witnesses provided statements claiming that the Plaintiff had an excellent reputation as a surgeon. Following the airing of the program, the Plaintiff became withdrawn, depressed, hurt, and angered. Damages were awarded for non-economic and economic loss.
Plaintiff’s Bad Reputation
An assessment of damages must be based upon a qualitative judgment as to what the Plaintiff’s reputation was before the publication injured that reputation8. A Defendant can therefore, lead evidence of a Plaintiff’s bad reputation in mitigation of damages, provided it is in the relevant sector so as to be related to the damage done by the defamatory publication9.
In Amalgamated Television Services Pty Ltd v Marsden10, the Defendants were held liable for defaming the Plaintiff by broadcasting a television program which imputed that he had on numerous occasions had sexual relations with males under the age of 18. The Defendants appealed the award of damages arguing that only nominal damages should have been awarded. The gist of their argument was that the Plaintiff had a bad reputation as he was well-known for his promiscuity and use of male prostitutes. The Court stated at paragraph :
“…I do not accept that the evidence proves that the publicity given by himself to his sexual conduct was damaging to his general reputation. The evidence as to publicity given by himself, the weight of the material persuades me, conforms with the general view of the people called that that was consistent with an aspect of his character of which they were aware by knowledge or by repute and with which at worst, an individual by his or her own standards might not have agreed, though not in derogation of that witness’ assertion of the plaintiff’s good settled reputation….Indeed, the defendant goes so far in its submissions to suggest that such good reputation as he had in particular sectors of his activities was ‘blighted by his reputation as to his sexual conduct’.”
The trial judge found that the lifestyle of the Plaintiff did not bring to an end the good reputation he had, and the Court of Appeal concurred.
In the High Court case of Australian Broadcasting Corporation v O’Neill11, the Defendant was a prisoner serving time for murdering a child and confessed to murdering a second child soon after. The Plaintiff proposed to broadcast a documentary filmed entitled The Fisherman, which was to expose and prove true that O’Neill was responsible for the abduction and murder of the Beaumont Children. The Defendant applied for an interlocutory injunction from the Supreme Court of Tasmania and succeeded. After appealing in the Supreme Court of Tasmania and the Full Court, and failing, the Plaintiff appealed to the High Court of Australia which removed the injunction such that the program was able to be broadcast. In coming to its decision, the High Court found that the Supreme Court of Tasmania had failed to take proper account of the significance of freedom of speech and the possibility that, if publication occurred and was found to involve actual defamation, only nominal damages might be awarded.
In the case of M’Pherson v Daniels12, the Court held that a Plaintiff cannot seek to repair or restore their reputation if they do not deserve the good reputation to begin with.
Evidence as to good or bad reputation can be led by either party to defamation Court proceedings, however, the evidence must be relevant to the subject of the defamatory matter. For example, in Australian Broadcasting Corporation v McBride13, the New South Wales Court of Appeal decided that evidence that the Plaintiff medical practitioner had allegedly falsified results of scientific experiments was not relevant.
Do I Have to be a Celebrity to Win a Defamation Case?
“The more public the reputation, the greater the damage to reputation”14. This quote would apply well to celebrities who have been defamed. For example, in the recent defamation case of Geoffrey Rush, he was awarded $2.9 million when the Court found that he had been defamed in newspaper articles that had also appeared on the internet. Another recent case involved defamatory magazine articles written about Rebel Wilson. She was awarded damages of $600,000. As stated above, damage to reputation can be in terms of the social reputation that the Plaintiff enjoys in the community. In that type of situation, only nominal damages are likely to be awarded. If the damage to reputation affects the Plaintiff’s income and job prospects the quantum of the damages will be greater. Damages can also be awarded for economic loss suffered by a Plaintiff.
Under the national, uniform defamation laws in Australia, it is for the judge to decide the quantum of damages to be awarded to a Plaintiff, regardless of whether the trial is before a jury15.