Definition of and legislation related to defamation
Defamation law deals with protecting reputations. Defamation law gives a person whose reputation has been wrongfully attacked the right to take legal action against those responsible for the attack.
The option of taking legal action is only available if:
- the material was ‘published’ (written, spoken, illustrated or posted on the internet) to at least one other person;
- the material identified the plaintiff (the person who claims to have been defamed) directly or indirectly;
- the material was ‘defamatory’ of the plaintiff; and
- for material published from 1 July 2021: the material has caused, or is likely to cause, serious harm to the reputation of the plaintiff.
If all the above elements are established, the defendant must try and establish that they have a defence to the plaintiff’s claim.
However, for material published from 1 July 2021, the plaintiff needs to prove that the defamatory material caused, or is likely to cause, serious harm to their reputation.
Uniform defamation law came into operation throughout Australia on 1 January 2006. In Victoria, the relevant legislation is the Defamation Act 2005 (Vic) (‘Defamation Act’). Before the enactment of the uniform law, defamation law was different in each state and territory, which caused complexity in relation to Australia-wide publications (e.g. national newspapers).
In Victoria (and some other jurisdictions in Australia), significant changes to defamation law have come into effect that apply to material published from 1 July 2021. Therefore, it is important to identify the correct law that applies to a publication.
Before the Defamation Act, the law of defamation in Victoria was governed solely by decisions of the courts (the common law). The Defamation Act retained much of the common law – including the common law defences to defamation – and supplemented those defences with new statutory defences. So, Victoria’s defamation law comprises both the Defamation Act and the common law.
When are words defamatory?
Words are defamatory when they convey a meaning (or ‘imputation’) about a person that lowers the person’s reputation in the eyes of reasonable members of the community, or causes the person to be ridiculed, avoided or despised by members of the general public.
The meaning of the publication (whether written, spoken or illustrated) as a whole within which the defamatory words exist is central to legal action.
How does a court decide what meanings are conveyed by a publication?
To establish what meanings or imputations are conveyed, the words and/or images contained in the publication must be considered in the context of the entire publication.
The publisher’s intention is irrelevant in establishing a publication’s meaning.
The real question is what meaning(s) would an ordinary, reasonable person understand from the publication. The court views the publication through the eyes of this hypothetical ‘ordinary reasonable person’, in order to decide what meanings are conveyed. The law recognises that the ‘ordinary reasonable person’ is a person of average intelligence, who is neither perverse, morbid or suspicious of mind, nor avid for scandal, but who is also not unusually naïve, who engages in a degree of loose thinking, who can and does read between the lines, and who has a capacity for implication that is greater than that of a lawyer.
A defamatory imputation may be the natural and ordinary meaning of a publication (i.e. the meaning an ordinary person would take from the 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.
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 not been considered in detail in Australia. However, in the United Kingdom, the view has been taken that ‘serious’ harm is a relative term, to be considered in the context of the particular case.
‘serious’ has been said to be ‘rather more weighty than “substantial” but to require no further gloss’Gatley on Libel and Slander (Sweet & Maxwell, 13th edn, 2022) [4-009].
In general, factors that are relevant to the determination of serious harm include:
- the meaning of the words complained of;
- the situation of the plaintiff;
- the circumstances of the publication;
- the inherent probabilities;
- the effect of the publication on those to whom it was published (e.g. whether the allegations were believed);
- 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).