The Law Handbook 2024

Chapter 11.2: Defamation and your rights 1009 words). Or, a defamatory imputation could be a special meaning (known as a ‘true innuendo’) understood only by some people who have knowledge of a particular fact or set of facts. For example, the statement, ‘Mr X got married last Sunday’, made to someone who knows nothing about Mr X’s personal life, is not defamatory. However, if the listener knows that Mr X was already married, the statement has a defamatory meaning, because it implies that he has committed bigamy. Ambiguous statements A publication is defamatory if an ordinary person reading or hearing the words, without inside knowledge, considers that the publication conveys a meaning that is defamatory. It is not enough for the publisher to point to another possible interpretation that is not defamatory; if ordinary people understand the publication to have a defamatory meaning, an alternative innocent meaning is not a defence. Where a true innuendo is alleged, the publisher is only liable if the plaintiff, in addition to establishing a defamatory meaning, can show that the material was published to at least one person who knew the relevant facts to understand the special meaning. What is ‘serious harm’? ‘Serious harm’ is a new element of the tort of defamation. Because the element is new, it has only been given limited consideration in Australia (see in particular Raider v Haines [2022] NSWCA 198). ‘Serious’ means more than merely ‘substantial’, but need not be ‘grave’ ( Raider v Haines [2022] NSWCA 198 at [27]). Injury to a plaintiff’s feelings is not the ‘harm’ required, which must be harm to reputation. In general, factors that are relevant to the determination of serious harm include: a the meaning of the words complained of; b the situation of the plaintiff; c the circumstances of the publication; d the inherent probabilities; e the effect of the publication on those to whom it was published (e.g. whether the allegations were believed); f other factors that were previously only relevant to mitigation, such as the size of the audience. In the case of corporations that can sue for defamation, the publication must have caused, or be likely to cause, serious financial loss to the corporation to be ‘serious harm’ (s 10A(2) Defamation Act). Who can sue for defamation? Any person who is the subject of a defamatory publication can sue for defamation. However, section 9 of the Defamation Act significantly restricts the rights of corporations to sue for defamation. Only certain not-for-profit corporations, and corporations that employ less than 10 employees, can sue for defamation. It is not necessary for the plaintiff (i.e. the person who claims to have been defamed) to be identified by name in the defamatory publication. It is sufficient to show that a reasonable person reading the words understands them as referring to the plaintiff. Claiming that the defamatory material was not intended to refer to the plaintiff is not a defence, nor can it be claimed that the reference to the plaintiff is ambiguous. In one case, two people of the same name successfully sued in relation to the same defamatory publication. A publication that refers to a group of people (rather than named individuals) only defames members of the group if a reasonable person regards it as referring to every single member of the group. For example, the statement, ‘all lawyers are dishonest’, is not defamatory of any particular lawyer because a reasonable person would not think that the statement means that every single lawyer in Australia is dishonest. On the other hand, the statement, ‘Slow & Bideawhile is a dishonest firm of solicitors’, could well be regarded as meaning that every solicitor employed by Slow & Bideawhile is dishonest. In that case, each of them could sue. A government body (e.g. a government department or local council) cannot sue for defamation in relation to a statement that comments on the way it carries out its public functions. However, an individual politician, public servant or local councillor can sue if a statement refers to the way in which they personally carry out public functions. From 1 July 2021, if a person wants to sue for defamation, they must follow the ‘concerns notice procedure’ explained in Part 3 of the Defamation Act. In particular, they must send a ‘concerns notice’ before commencing proceedings (see s 12BDefamation Act).