Torts Week 9 - Defamation

1. TortsWeek 9- Defamation Frances McGlone room 708 3864 1094 f.mcglone@qut.edu.au

2. Topics • Week 9 • introduction • elements of the cause of action • Weeks 10 & 11 • defences • remedies

3. 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

4. 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

5. 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)

6. 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

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

8. 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

9. 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

10. 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

11. 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

12. 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

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

14. 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

15. 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

16. 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

17. 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

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

19. 3. Publication - Common Law • The defamatory matter must be made known to at least one person other than the plaintiff • What constitutes publication?

20. 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

21. 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

22. 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

23. 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

24. Summary • Defamation in Qld • A defamatory matter/statement • Reference to the plaintiff • Publication • Defamation at common law • plus injurious Falsehood

25. Thank you!