What is defamation?

A person whose reputation has been attacked can sue for defamation if damaging material that identifies them was published. Words are judged in context, either by the standards of a reasonable person giving words their ordinary meaning or with a special meaning understood only by people “in the know”.

Definition and legislation

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:

material was “published” (this includes being written, spoken or illustrated, including being posted on the Internet) to at least one other person;

the material identified the plaintiff (i.e. the person who claims to have been defamed), whether directly or indirectly; and

the material was “defamatory” of the plaintiff.

If all the above elements are established, it falls to the publisher to try and establish that they have a defence to the plaintiff’s claim. Note that the publication of defamatory material is presumed to cause damage to a plaintiff, and so the plaintiff does not have to separately prove that they have suffered damage.

From 1 January 2006, uniform defamation law came into operation throughout Australia. In Victoria, the relevant legislation is the Defamation Act 2005 (Vic). Prior to enactment of the uniform law, the law of defamation was different in each state and territory, which caused undue complexity in relation to Australia-wide publications (e.g. national newspapers, on the internet).

Prior to the Defamation Act, the law of defamation in Victoria was governed solely by decisions of the courts (known collectively as 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. Accordingly, the law of defamation in Victoria is now governed both by 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 will 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.

What about 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.