Defamation

Public perception; legally protected interest in what others think of us. It

doesnt matter whether or not individuals deserves their reputation.
Liability is strict
a) Defamatory matter e.g. written publications, electronic publication,
anything by which words can be communicated (anything capable of
conveying an imputation (e.g. waxwork)).
b) Defamatory meaning- specify what meaning those words have, which is
defamatory.
Defendant has to prove defence, which is used to protect freedom of speech.
What constitutes defamatory meaning?

Imputations which tend to expose the plaintiff to hatred, contempt or ridicule

(Parmiter v Coupland [1840])
That which tends to lower plaintiff in the estimation of ordinary decent
persons in some respect (Sim v Strecth [1936])
That which cause him or her to be shunned or avoided (Yousoupoff v MGM
[1934])
What is regarded as defamatory changes overtime based on social standards
and norms.

How is defamatory meaning determined?

1. Judge decides whether imputations are indeed defamatory.
2. At trial, jury determines whether imputation was defamatory as a matter of
fact.
a) Juries can offer protection for freedom of speech esp. against govt.
oppression
b) Representative of public perception
Historical background
Common law and legislation varied across jurisdictions. This was particularly
problematic because defamatory material can be published nation-wide, creating a
problem of jurisdiction-hopping.
Distinct categories of defamation
a) Libel is defamation through written material. Actionable per se. Written
material was considered more damaging as it was more permanent.
b) Slander is defamation via speech. Not actionable without proof of damage.
Approach to defamation now
1. Common law
2. Uniform legislation (legislation that is consistent across states)
3. Constitution
All defamation cases are actionable per se (s7, Defamation Act 2005 (Qld))
Radio 2UE
Imputed that journalist was fired from previous company.
1. Journalistic reputation affected.
Statement of bombastic buffon in the context of discussing the journalists
profession credibility.
Insults

Insults are not defamatory. People unlikely to think less of the person the
insults are made against. (Parkins v Scott [1862])
Insult to the point of ridicule.
Les boid: if imputation was that he was unprofessional as a rugby league
player, then defamation couldve been pleaded.
Imputation of being fat and slow: implied imputation that he looked ridiculous
Objective Standard
Reported a photo of women and her husband at a racing event, identified Mr.
X and Miss Y. Imputed that the couple was not married. It is irrelevant
whether or not there was intention to defame (Cassidy v Daily Mirror [1929])
General community standards applies, not a particular section of the
community (Loukas v Young [1968]). Majority of community do not believe in
witchcraft so it was not defamatory. This has the effect of discriminating
between groups whose views differ from mainstream society.
a) Imputation of breach of confidence in disclosing information about
abduction. Jury concluded that plaintiff was defamed. This case erred
in allowing individual journalists to determine whether material is
defamatory (Readers Digest v Lamb)
Not generally held view that being called an abortionist is defamatory.
Action was allowed on basis that a significant proportion of community might
consider this to be defamatory.
b) Sectional attitudes are allowed if there is an appreciable and reputable
section of community who holds a particular view. This is not
inconsistent with high court precedent-Reader Digest interpreted as not
allowing the opinion of few individuals to determine objective
standard. However, the opinion of groups can be taken into account?
Should sectional attitudes be taken into account?
Australia is racially pluralistic. Sectional views should be adopted only if
theyre reputable??
Context
Meaning can be derived from context (wording, size etc.): implications.
Plaintiff cannot sue on headline alone. Readers are presumed to read the entire
publications. The meaning of the headline has to be read in the context of the
whole article. However, location and size of headline is taken into account to
determine how the reader reads the whole article.
What is considered as the whole publication?
c) Depends on how well information is linked. Link to whole publication
insufficient.
Hockey
Online and published articles not defamatory
Publication is not defamatory unless its communicated to someone other than the
plaintiff.
Publisher may be liable if defamatory material is posted on their platform and they
failed to remove it.
Online service providers encourage individuals to report incidents of defamatory
material so that it can take action to remove it.

To be the publisher of content, the person must have some control over its publication.