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Torts Week 9 - Defamation

Frances McGlone

room 708

3864 1094

f.mcglone@qut.edu.au

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Topics

Week 9– introduction– elements of the cause of action

Weeks 10 & 11– defences– remedies

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Introduction

What interests are protected by defamation law? What are the sources of defamation law?

– position in Queensland• Defamation Act 1889 - commence June 1995

– other Australian jurisdictions

What is defamation?– three elements

• defamatory matter

• reference to the plaintiff• publication

– no defences available to defendant

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Libel and Slander

Common Law– two separate torts

• libel– defamation in permanent form

• slander– defamation in transient form

• radio broadcasts?– Church of Scientology v Anderson

• motion pictures?– Youssoupoff v Metro-Goldwyn-Mayer

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Why distinguish between libel and slander? Libel

– actionable per se

Slander– generally requires special damage– exceptions

• imputation of crime punishable by imprisonment• disparaging person in office, profession, trade etc• allegation of infectious or contagious disease• imputation of unchastity in women (created by statute)

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Libel and Slander

In Queensland– no distinction

• section 5(1) Defamation Act includes both permanent and transitory forms of communication

– Any person who by spoken words or audible sounds, or by words intended to be read either by sight or touch, or by signs, signals, gestures or visible representations, publishes any defamatory imputation concerning any person is said to defame that person.

– defamation actionable per se

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Elements of Defamation(Queensland and the Common Law)A defamatory matter/statementReference to the plaintiffPublication

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1. Defamatory Matter

Common Law– matter “of a kind likely to lead ordinary decent folk to

think less of the person about whom it is made”• Boyd v Mirror Newspapers [1980] 2 NSWLR 449 at 452

Queensland– section 4 Defamation Act: Likelihood of

• injury to reputation OR

• injury to plaintiff’s profession or trade OR

• other persons induced to shun or avoid or ridicule or despise the plaintiff

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Standard - objective testCommon Law and Queensland Judged by standard of “hypothetical referee”

– variously described as• reasonable men (women)

• right thinking members of society

• ordinary men(women) not avid for scandal

– knowledge of additional facts and circumstances• Youssoupoff v MGM

not sufficient to show discredit before a restricted class

• Byrne v Deane

• Compare: Krahe v TCN Channel Nine

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Protection of personal and business reputation Common law

– attack on business must be attack on plaintiff’s reputation

• Fairfax v Punch (1980) 31 ALR 624• Boyd v Mirror Newspapers [1980] 2 NSWLR 449

Queensland– section 4 Defamation Act includes:

• likely injury to the plaintiff’s profession or trade

– extends to virtually any legitimate calling• Queensland Newspapers v Baker

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Interpreting Defamatory Matter

Common Law– natural and ordinary meaning– innuendo

• false innuendo

• true innuendo

Queensland– section 4 Defamation Act

• imputation may be expressed either directly or by insinuation or irony

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Role of Judge and Jury

Common law– Judge:

• is the statement capable of bearing the defamatory meaning alleged

– Jury:• did the statement actually have that defamatory meaning

Queensland– section 18 Defamation Act

• same as common law

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Elements of Defamation(Queensland and the Common Law) A defamatory matter/statementReference to the plaintiffPublication

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2. Reference to the Plaintiff

Common law and Queensland– Material must be reasonably referable to the

plaintiff– Test:

• would a reasonable person having knowledge of the relevant circumstances understand that the material referred to the plaintiff

– Hulton v Jones

– Question of fact for jury

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Who may be defamed?

Common law and Queensland– Any living person

• reputation of living plaintiff may be injured by defamation of deceased person

• action does not survive death of plaintiff or defendant

– Corporations• not unincorporated associations

• not organs of Government

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Identification of the plaintiff

Need not be by name May come from knowledge of extrinsic

facts Intention of the defendant not relevant May be named in other publications

– subsequent publication by defendant– earlier publication by third party

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Defamation of a Group

Class as a whole will never have right of action

Members of class defamed may have action subject to:– size of the class– generality of the charge made

• see eg Bjelke-Petersen v Warburton

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Elements of Defamation(Queensland and the Common Law) A defamatory matter/statement Reference to the plaintiff Publication

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3. Publication - Common Law

The defamatory matter must be made known to at least one person other than the plaintiff

What constitutes publication?

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Queensland

Section 5(1)– a person who publishes defamatory matter

concerning any person is said to defame that person

Section 5(2)– definition of publication

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Injurious Falsehood

Common law– protects economic interests– actionable only if can prove pecuniary loss– Ratcliffe v Evans:

• requirements of the tort– false statement of and concerning goods

– publication by defendant to third party

– malice on part of defendant

– calculated to cause damage (objective test applied)

– proof of particular loss as a result of the statement

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Queensland

Included in defamation action – section 4 Defamation Act:

• defamatory matter includes any imputation concerning any person…by which the person is likely to be injured in the persons profession or trade

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Benefits of action in defamation over action for injurious falsehood

Plaintiff does not have to prove special damage– Hall-Gibbs Mercantile Agency Ltd v Dunn

(1910) 12 CLR 84

Plaintiff does not have to show that the statement was false

Plaintiff does not have to show defendant motivated by malice

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Summary

Defamation in Qld A defamatory matter/statement Reference to the plaintiff Publication

Defamation at common law plus injurious Falsehood

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Thank you!Thank you!