2.3.1.1 Introduction, imputations, whether or not defamatory[1]

Introduction
  1. Members of the jury, the law of defamation in Victoria is now governed by an Act of Parliament – the Defamation Act2005.That Act divides the tasks between you and me, because what it provides is that where a defamation proceeding is tried by a jury, such as yourselves, it is the jury’s role to decide whether the defendant published the matter;whether it was defamatory of the plaintiff;and any defences raised by the defendant.
  2. But the Defamation Act also provides that if you find that the plaintiff has been defamed and there is no defence, either raised by the defendant or (if raised) accepted by you, then it is the role of the judge (me) and not you to determine the amount of damages to be awarded to the plaintiff.
  3. An individual is permitted to sue in this State for damages in respect of anything published of or concerning him or her that is defamatory of that person.In order to succeed, the plaintiff needs to establish:

(a)the matter was published to at least one other person, which matter was published of or concerning the plaintiff (that just means it is matter published about the plaintiff);and

(b)the matter was defamatory of the plaintiff.

  1. In order to determine whether the matter (in this case, an [article/radio broadcast/television show/internet posting]) was defamatory of the plaintiff, you need to consider and determine what meanings were conveyed by the matter complained of.More particularly, you need to determine whether the meanings or imputations alleged by the plaintiff, or permissible variants of them, were conveyed by the [article/broadcast/show/posting].
  2. In a nutshell, before coming to any defence or defences, the questions you need to consider are:

(a)Whether the defendant published any material of or concerning the plaintiff;

(b)Whether the material published by the defendant bore any of the meanings (or permissible variants of them) alleged by the plaintiff; and

(c)Whether any of the meanings you find were conveyed, were defamatory of the plaintiff.

  1. I should tell you that the law of defamation presumes that a plaintiff comes to a court as a man or woman of good reputation, unless it is proven to the contrary.

If no attempt was made to prove that the plaintiff was not of good reputation, insert the following shaded section:

  1. In this case, there was no attempt to prove to the contrary, so the law presumes that the plaintiff at all relevant times had a good reputation. That does not mean that there is any reason to be critical of the defendant, merely that we are all presumed to have a good reputation, unless it is proved to the contrary.

Publication[2]
  1. Question (1) deals with the issue of publication.The plaintiff must show that the material complained of was communicated to at least one person other than [himself/herself].
  2. The plaintiff must prove on the balance of probabilities that the defendant published the matter complained of, before you can proceed to consider any issue of defamatory meaning.
  3. You have heard evidence that each of the matters complained of was published to at least the witnesses [insert witnesses].The real area of contest between the parties in this case is not so much whether publication occurred, as who is responsible for it, and what does it mean.
  4. Each separate comprehension of the matter complained of is a separate publication.Each person who takes part in bringing about that publication is liable as a publisher.So, a matter can often have many publications, and a number of publishers who are liable for those publications.
  5. All who are in any degree accessory to the publication of a libel (defamatory matter) and by any means whatever help to bring about such publication, are liable as publishers.For example, in the case of a newspaper article, those liable for publication would include the journalist who wrote it, the sub-editor who prepared it for insertion in the paper, the editor of the newspaper (who is responsible for its contents), the owner (or publisher) of the newspaper and the printer.Others who have been held to be publishers in such a case include newsagents who sell newspapers.Newsagents are seldom sued however because of the defence of 'innocent dissemination' to which I will come to shortly.
  6. Anybody who does something to help bring about publication can be a publisher.But also a person may be held to be a publisher for failing to prevent or stop publication.For example, in one case the secretary and manager of a club were held to be responsible for the publication of a notice on the club noticeboard, even though they did not write it or authorise it to be put on the board.They were held to have become publishers when it was brought to their attention and they failed to remove it.In another case, a council was told about defamatory posters that have been put on their bus shelters.The council did not authorise the posters.Indeed they probably prohibited people from posting billboards on their bus shelters.But they were held to have become liable as publishers for those posters because they left them there for long enough for them to be seen as consenting to their continued presence.
  7. The principle in that type of case is that a defendant will be liable as a publisher if the evidence establishes that it consented to the publication.This may be inferred from the fact (if you find it to be a fact) that a defendant failed to take steps that it could have taken to prevent publication, or to prevent the continued publication.
  8. Putting those cases to one side (that is, parties who have been held to be publishers for not doing something in circumstances where it could be inferred that they therefore consented to publication), publication on the part of a defendant requires an intention to publish.That is, not an intention to publish the specific defamatory word or imputation, but at least an intention to publish the publication containing the matter complained of.Again, in the newspaper example, the newsagent does not intend to publish the story, only to publish the newspaper.

As appropriate, and particularly in internet defamation cases, insert the following shaded section:

  1. In this case, the plaintiff contends that the defendant intended to publish the material complained of because while there were automated systems, those systems were the consequence of computers programmers, written by human beings, which programs were doing exactly what the defendant and its employees required. The plaintiff then contends that the failure by the defendant to take steps to remove the matter complained of after the plaintiff’s letter of complaint enables you to infer that the defendant consented to the continuing publication and is therefore liable as a publisher.

As appropriate, and particularly in internet defamation cases, insert the following shaded section:

  1. On the other hand, the defendant contends that the relevant intent to publish anything is lacking, and because of the limited nature of the plaintiff’s letter of complaint, it could not be said that any failure by the defendant to remove the matter complained of constituted a consent to publication. Additionally it contends that it had no ability to remove the matter complained of and so cannot be a publisher on this basis as well.

Meanings/imputations
  1. In this case, there have been references to imputations conveyed by the [article/broadcast/show/posting].Imputations are just meanings.Lawyers use the words interchangeably.Whether you call them meanings or imputations makes no difference.
  2. It is for you to decide whether the plaintiff has made out one or more of the meanings or imputations [he/she] alleges.These are set out in question (1)[if publication is not in issue] [and question (3) if the case is also a true innuendo case].However, you should bear in mind that although the plaintiff has proposed certain meanings for your consideration, in deciding whether the material complained of bore those meanings, it is not necessary for you to conclude that the meanings which have been posed by the plaintiff were exactly the meaning conveyed by the publication.
  3. It would be sufficient if you were to conclude that the publication complained of contained another injurious meaning or meanings about the plaintiff which was or were a variant of and not substantially different from and not more serious than the meanings contended for by the plaintiff.This is what I mean by a permissible variant.
  4. It is for you to decide what meanings were conveyed.It does not matter what any witness might have said or thought the matter complained of conveyed.
  5. You decide what the matter complained of conveyed by determining what it would have conveyed to a hypothetical ordinary, reasonable [reader/listener/viewer].
  6. Now that character (the hypothetical ordinary, reasonable [reader/listener/viewer]) is a person who the law says has particular characteristics.The ordinary, reasonable [reader/listener/viewer] is:

(a)a person who does not live in an ivory tower;

(b)a person who can and does read between the lines, in the light of his or her general knowledge and experience of worldly affairs;

(c)he or she is not avid for scandal (that is, not greedily looking out for scandal);

(d)he or she is neither unusually suspicious nor unusually naïve;

(e)he or she is a person of fair, average intelligence; and

(f)he or she does engage in a degree of loose thinking and, as I have said, is understood to read between the lines.

  1. It is also said that the hypothetical ordinary, reasonable [reader/listener/viewer] is a layperson, not a lawyer – and that the capacity of the ordinary, reasonable [reader/listener/viewer] for implication is much greater than that of a lawyer.
  2. In determining what meanings the ordinary, reasonable [reader/listener/viewer] would have derived from the material published, you must assume that such a person would have [read the whole of the article/heard the whole of the broadcast/seen the whole of the program].The question you ask yourself is, having [read/seen/heard] the whole of the matter complained of, would it have conveyed the meanings alleged by the plaintiff (or permissible variants of those meanings) to the ordinary, reasonable [reader/listener/viewer] as I have described [him/her].
  3. Look at the whole of the matter complained of.The sense of a particular section may be affected by another part of it.That said, a particular section might clearly raise a particular imputation.So while you look at the whole of the material complained of, if something stands out in one part, you are not bound to ignore it – you take it into account.
  4. In relation to this part of the case, it is important to bear in mind that the test is not whether the ordinary, reasonable [reader/listener/viewer], knowing particular facts, would believe an allegation made about the plaintiff in the matter complained of.Rather, it is whether the ordinary, reasonable [reader/listener/viewer] would have understood the matter complained of to be conveying that meaning.
  5. Example:imagine that you have a very close friend who you trusted implicitly, and you read in the paper one day an article which imputed that that good friend of yours had stolen from his employer.Now, you might say, 'This is just nonsense – Iwould trust this person with my life'.But if you said, 'But nevertheless, the article clearly conveys that he is a thief, having stolen from his employer', that is the test.So it is not whether the [reader/listener/viewer], knowing the plaintiff, would believe the imputations.It is whether the [reader/listener/viewer], whether or not seized with particular facts, would understand that what was being said about the plaintiff conveyed those meanings. And that is determined by deciding what the ordinary reasonable [reader/listener/viewer] would have made of the matter complained of.
Were the meanings you find conveyed defamatory of the plaintiff?
  1. Having determined what imputations/meanings were conveyed, the next step is to determine whether these were defamatory of the plaintiff.In order to succeed in a defamation case, the plaintiff must establish that one or more of the imputations/meanings was defamatory of [him/her].As with determining meaning, you do this without reference to any belief the plaintiff might have or the defendant might have or any witness might have.
  2. The question of whether a meaning or imputation is defamatory of the Plaintiff is one to be determined by reference to general community standards. The test is whether the imputation has a tendency to lower the reputation of the Plaintiff in the minds of ordinary decent members of the community, being reasonable people of ordinary intelligence, experience and education who bring to the question their general knowledge and experience of worldly affairs. That is, is the publication likely to lead such members of the community to think less of the Plaintiff? You must ask this question in respect of each imputation/meaning that you find the Plaintiff has established.[3]
True innuendo cases

Where the plaintiff relies upon a reader’s/viewer’s/listener’s knowledge of extrinsic facts giving rise to the meanings alleged, insert the following shaded section:

  1. A plaintiff can succeed in a defamation case in one of two ways:
(a)First, as I have already said, by showing that the matter complained of was, in its natural and ordinary meaning, defamatory of the plaintiff;
(b)Secondly, a plaintiff may succeed by establishing that there were certain additional facts (lawyers call them extrinsic facts) not contained in the matter complained of, but which were known to some [readers/listeners/viewers]. In such a case, it is open to the plaintiff to contend that by reason of the knowledge of these extrinsic facts, the matter complained of conveyed certain meanings to people who [heard/saw/viewed] it and who had that knowledge.
  1. In order to succeed on this basis, the plaintiff must establish the existence of the extrinsic facts and then persuade you that the ordinary, reasonable [reader/listener/viewer] would have derived the meanings contended for by the plaintiff (or permissible variants) from the matter complained of and as a result of having the relevant knowledge.
  2. Again, it is the ordinary, reasonable [reader/listener/viewer] test. Again, as to whether a particular meaning/imputation is defamatory, the test is whether it would have the tendency to lower the reputation of the Plaintiff in the minds of ordinary decent members of the community, being reasonable people of ordinary intelligence, experience and education who brought to this question their general knowledge and experience of worldly affairs.

No affirmative defences
Judicial note: In a no affirmative defence case, the charge should revert to the general charges in 1.1-1.7, being relevant directions concerning the jury questions, the issues, a summary of the evidence and a summary of counsels’ arguments. Otherwise, the charge should proceed with relevant affirmative defences.

Last updated: 14 April 2014

1

[1] Note: This charge is a guide only, and may require modification to fit the facts of an

individual case

[2]Publication is almost never an issue. Responsibility for publication (particularly in internet cases) is increasingly becoming an issue. The material under this heading is an example of a charge that could be given in a case where the defendant denies the requisite intent to publish, and the plaintiff puts an alternative publication case that after notice was given to the defendant, the defendant failed to take a step open to it to stop publication.

[3]In some earlier cases and charges, the test was expressed as to whether the imputation had a tendency to lower the reputation of the Plaintiff in the minds of right thinking members of the community. However, that expression has fallen out of favour since the High Court’s decisions in Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460, 467-8 [5]-[7] and Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31, 52-53 [54].