Meaning and Capacity of Defamatory Material
Where empanelled, the jury will determine the meaning of defamatory material by analysing the facts of any particular case[1]. This involves two considerations, the first being whether the imputations alleged are conveyed in the publication and if so, whether they are defamatory to the ordinary, reasonable reader[2]. The ordinary, reasonable reader hypothetically examines the circumstances with someone of average intelligence, without any special knowledge[3].
Where defamatory capacity is concerned, it is a question of law that the judge determines as a threshold test for liability[4]. In such circumstances, the judge is required to determine “whether imputations are capable of being conveyed by the matter to the ordinary, reasonable reader” and if satisfied, then “whether those imputations are capable of defaming the plaintiff in the eyes of the ordinary, reasonable reader”[5]. The test of determining the capacity of defamatory material and statements is of reasonableness[6]. Where the matter is incapable of determining defamatory matter, the judge must cautiously conclude the matter[7].
The Ordinary, Reasonable Reader
The ordinary, reasonable reader refers to an objective perspective when determining defamatory material. This hypothetical individual is someone who is of “fair, average intelligence … who is neither perverse… nor suspicious of mind… nor avid for scandal”[8]. In the case of Farquhar v Bottom[9], Justice Hunt described the ordinary, reasonable reader as follows:
“This ordinary reasonable reader does not… live in an ivory tower. He can, and does, read between the lines, in the light of his general knowledge and experience of worldly affairs…[T]he ordinary reasonable reader is a layman not a lawyer, and… his capacity for implication is much greater than that of a lawyer.”
Correspondingly, Justice Kirby constructed the description of the ordinary, reasonable reader as excluding two extremes. On the one end, there is the extremity of being suspicious and mistrusting, while on the other end there is the extremity of being naive and disbelieving[10].
The Defendant’s Intention
It is important to note that the Defendant’s intention to post defamatory materials is irrelevant as to his or her liability[11]. As long as the Defendant published defamatory material that is capable of causing harm to the Plaintiff, the question of intention is immaterial.
Natural and Ordinary Meanings versus True Innuendos
There are two ways in which defamatory imputations can be conveyed from the publication, by its natural and ordinary meaning and by true innuendo. Where defamatory publications are conveyed by its natural and ordinary meaning, a third party would interpret the material in its literal form and would not need to be aware of any extrinsic or special facts for them to understand that the publication is defamatory[12]. Alternatively, true innuendo refers to publications which require extrinsic or special facts in order for a third party to construe defamatory meaning[13].
Interpretation of Defamatory Material
The Single Meaning Rule
This is a rule where the Court determines what the ordinary, reasonable reader of the defamatory publication would understand the single meaning of the material to be[14]. While the rule has been understood to control the balance between the protection of freedom of expression and the right to reputation, this rule has been repeatedly criticised for being artificial[15]. The reasoning behind this criticism is that realistically words and phrases particularly those used in defamatory material can be construed in many ways with various meanings.
Context
When interpreting defamatory material, it is important to consider the publications as a whole and circumstances surrounding the publication. In other words, it is important to understand the context in which the defamatory matter has been published[16]. As the Court described in the case Greek Herald Pty Ltd v Nikolopoulos[17], “[c]ontext must clarify or intensify the sting of a facially benign (pleaded) imputation. The converse is also true”. When the context of a publication is considered, the reader has a clearer understanding of the meaning of the imputations. Additionally, context is necessary when determining defamatory imputations of images. For example, in the case of Tolley v JS Fry & Sons Ltd[18], the material was a caricature of the Plaintiff used for the purpose of advertising the Defendant’s chocolate bars. The Plaintiff was an amateur golfer and, according to the Court, was highly relevant in determining whether the material was defamatory. In the case of Garbett v Hazell, Watson & Viney Ltd[19], a photographer was defamed by the editor of the magazine when his photograph of showing two women his camera was published with a phrase conveying that the photographer was dealing indecent pictures. The Court of Appeal held that the publication was defamatory of the photographer. Evidently, these cases identify the significance of the context of defamatory publications.
Nature of Publication
Along with context, it is important to consider the nature of publications when determining defamatory meaning. Defamatory matter can be published in permanent and transient form, which effects how the ordinary, reasonable reader would convey the publications. Where publications are in their permanent form such as being published in books, magazines, or newspapers the ordinary reasonable reader can re-read the material and reconsider the matter conveyed beyond the first impression[20]. In contrast, where publications are in their transient form like on television or the radio, the ordinary, reasonable reader will not have this opportunity even while having taken the whole publication into account due to the short-lived nature of transient publications[21]. The substance when determining the nature of publications is how it is absorbed by the reader[22]. Further, the introduction of advancing technology such as the internet and social media would raise further concerns in analysing the nature of publications[23].
Bane and Antidote
The bane and antidote refer to phrases in defamatory statements which includes defamatory meaning and negating that meaning. The bane refers to the wrong or defamatory part of the phrase, while the antidote refers to the ‘cure’ of that defamatory meaning. The phrase must be taken as a whole or in the context for the bane and antidote to be assessed properly[24]. In some situations, the meaning of the bane may be cancelled out or cured by the antidote[25]. However, this is rare[26]. The test of determining whether there is a defamatory capacity in such statements is stated in the case Morosi v Broadcasting Station 2 GB Pty Ltd[27] as follows: “whether the effect [of the defamatory imputation] is overcome by contextual matter of an emollient kind so as to eradicate the hurt and render the whole publication harmless.”
Implications and Inferences
Implications and inferences are important to assess when determining defamatory meaning in publications because meaning is derived from words by way of implication or inference. Additionally, these are referred to as ‘false innuendos’. In Amalgamated Television Services Pty Ltd v Marsden[28], Justice Hunt distinguishes between inferences and implications in that inferences are where the reader of a publication draws a conclusion based on what has been said, and an implication is what the reader understands the published statement to mean.
Imputations of Suspicion
Imputations of suspicion refer to, for example, a suspect in a case as opposed to someone convicted of a crime. It is understood that the ordinary, reasonable reader in the circumstances could read published statements of mere arrest to mean nothing more than an arrest. The reasoning behind this is that the reader would be aware of the presumption of innocence. On the other hand, where a publication is made informing of someone being charged along with being arrested, the ordinary, reasonable reader is likely to view that as someone being guilty. In Sergi v Australian Broadcasting Commission[29], the court held that the test of reasonableness was necessary to determine how imputations of suspicion were to be conveyed.
Mere Vulgar Abuse
While many would believe abusive or insulting language to be defamatory, much of the language itself does not disparage a Plaintiff’s reputation, therefore, cannot be proven as defamatory. The test for determining whether matter containing abusive language is defamatory is if the publication is “capable of conveying an imputation which disparaged the Plaintiff’s reputation, rather than whether the Defendant’s conduct amounted to mere vulgar abuse.[30]”
Mere Jest
It is unclear whether mere jest is considered defamatory in such matters. Mere jest is not considered to be sufficient in disparaging the Plaintiff’s reputation. The test in such circumstances is to determine how the ordinary, reasonable reader would have understood the statement. If the reader understood the meaning of the statement to be merely in jest, then no harm to the Plaintiff’s reputation would be conveyed and therefore, the Defendant’s argument would succeed[31]. If, however, it can be established that the matter was defamatory, the Defendant’s argument would fail. Either way, it is difficult to establish a good argument on the basis of mere jest.
For further information on jest or satire’s place in defamation, please read our article on “Satire and Defamation”.
Tests Determining Defamatory Material
In determining whether material is defamatory or not, the Court considers the following tests:
- Disparagement of reputation;
- Hatred, contempt, and ridicule;
- Lowering in the estimation;
- Ridicule;
- Shun and avoid;
- Professional reputation;
- Community standards and sectional standards; and
- Changing views about what is defamatory.
For more information on these tests, please read our article titled “Legal Tests Determining Defamatory Material”.
Conclusion
How we determine defamatory meaning and capacity depends on the material in which we are considering. Additionally, it depends on the different aspects and contexts involved in the material in question. Importantly, how the Courts interpret material is essential in finding whether they are in fact, defamatory or whether they are merely derogatory for example.
