What is Defamation?
Defamation can arise from written material or may be oral. To establish a ‘prima facie’ case of actionable defamation (whether libel or slander), the plaintiff must establish three things:
- that the material was ‘published’ (the publication);
- that the material identifies them (the issue of identification);
- that the material is defamatory (the defamation issue).
A handy guide is located at The Law Project.
Publication is established by proving communication of the material to someone other than the person defamed. This can be done by that person hearing spoken words or by their reception of visual material which can consist of written words or other images, such as television pictures, photographs or cartoons. But the important point is that the material must come to the attention of at least one third party. An insulting letter read only by the person to whom it is addressed is, therefore, not ‘published’, but, if addressed to the victim’s firm and read by an employee, there is publication. Words broadcast on radio or television or printed in a newspaper and pictures so broadcast or printed will, obviously, be published.
Identification is usually established easily. The person aggrieved is often named in the publication, but this is not essential. If the publication refers to the plaintiff by necessary implication, or if the person’s identification with the events is a matter of notoriety, then identification can still be established. To say, for example, that all lawyers are thieves does not defame any one lawyer because no particular lawyer is named. However, to say that the lawyer for a certain person is a thief may well be held to defame that lawyer. Even though they are not referred to by name, there could be many potential recipients of the message who know the facts, and would identify that particular lawyer with it.
For material to be defamatory, it must be such that it is likely to disparage or discredit the person’s reputation. There are a number of ways this might occur:
- expose a person to ridicule;
- injure the reputation of the person about whom it is published; or
- injure that person’s reputation in their profession or trade; or
- cause ordinary persons to think less of them or to avoid them.
Something can be defamatory either:
- in its natural or ordinary meaning; or
- as a ‘true innuendo’.
The natural or ordinary meaning of words is the meaning which ordinary people would give them, whether directly or by inference, where no special knowledge is required for that inference to be drawn. For example, the words: ‘John Brown is a drunkard’ convey their message obviously. With a little thought, the ordinary person could derive the same message by inference from the words ‘’John Brown is to be found in the Brisbane Hotel most nights’.
On the other hand, a ‘true’ or ‘legal innuendo’ will arise where the words convey a special meaning only to persons possessed of special knowledge. For example, the words ‘John Brown is to be found most nights in a certain establishment on Brisbane Street’ would, perhaps, suggest the same characteristics in John Brown as the words cited in the preceding paragraph to those who happen to know that Brisbane Street is where the Brisbane Hotel is situated.
Defamatory material must injure the plaintiff’s reputation. This depends on all the circumstances of the publication, including time and place – attitudes change over time, and influence whether a statement will be viewed as defamatory. It has been found in the past to be defamatory to say that a person is a ‘homosexual’, a ‘Communist’ or a victim of a rape or that a person has ‘scabbed’ on their union mates (in refusing to participate in an illegal strike) or even ‘has Negro blood’. Depending on the person about whom the suggestion was made and the context, it may not be the case that the same findings would arise today.
The injury to the plaintiff’s reputation need not be intentional. A defendant could well think it a compliment to describe someone as ‘gay’, but a court would be entitled to find that this description was damaging to that person’s reputation.
The damage can be quite accidental. A defamatory newspaper article about ‘John Brown’ could provoke a flood of actions from persons other than the real subject of the article. Similarly, a work of pure fiction could be held to have defamed a person who could show that they were likely to be identified as one of the characters.
Example – to who was the material referring?
The operation of these principles was illustrated in a case which came before the Queensland Full Court in 1987 (under repealed legislation). Mr. Warburton, then the Leader of the Opposition in the Queensland Parliament, said to a television reporter ‘just as the tide turned against the dictator Marcos, so too can Bjelke-Petersen and his corrupt government be swept from office’. This statement was broadcast on a news program. Mr. Bjelke-Petersen, then the Premier, sued Mr. Warburton and the television station. Plainly, he had been identified. The words had been published by Mr. Warburton, when he spoke to the reporter, and by the station, when it broadcast them. The real question was whether they meant that Mr. Bjelke-Petersen, himself, was corrupt, or whether they referred to the members of the Government, apart from him. It was held that the allegation of corruption was made against the Premier, as well as against his ministers, especially when it was considered that Mr. Bjelke-Petersen was compared with the former President Marcos ‘whose name has become a byword for corruption’. (Bjelke-Petersen v Warburton (1987) 2 Qd R 465).