Case Summary: Mirror Newspapers Ltd v Harrison (1982)

 
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Case Summary: Mirror Newspapers Ltd v Harrison (1982)

 

Key: [x] = case paragraph number

 

Citations

 

Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; [1982] HCA 50; 56 ALJR 808; 42 ALR 487

 

Facts

 

Matter:

 

The newspaper, the Daily Mirror, published the following:

"On the front page, in headlines two inches high, the article says:
'BALDWIN: 4 ARRESTS' and, in smaller type: '3 MEN, WOMAN HELD IN RAIDS'. The headline on the second page is: 'BALDWIN - 4 ARRESTED' and, in smaller type: 'Police raid city homes.' On each of the two pages there is a photograph of the plaintiff (with part of his face blocked out) as one of the three men arrested. The article states that the arrests were made 'in dawn raids today over the bashing of State Labour M. P. Peter Baldwin'. Mr. Baldwin is said to have been 'viciously bashed by at least two men' and to have suffered 'shocking facial injuries and a fractured skull and requiring more than 50 stitches in his wounds' necessitating 'almost two weeks in hospital'. The article reminds its readers that Mr. Baldwin had earlier made allegations of vote-rigging and of the infiltration of organized crime into inner-City Labor Party branches, and implies that the attack upon him was in reprisal for those allegations. The arrests are said to have followed a month of 'intensive investigation by a special squad of detectives' who had 'worked around the clock to fulfil a directive from the Deputy Premier, Mr. Ferguson, that the culprits be found'. The article says that a fourth man may be arrested and that all five are expected to appear in Court later that day, to be charged with 'conspiracy and fraud'. The article states that tight security will surround the Court when they so appear. [3]

 

Imputations:

 

  1. "That the plaintiff was directly or indirectly involved in the vicious bashing of Mr. Peter Baldwin on the night of 17th July 1980 whereby Mr. Baldwin suffered shocking facial injuries and a fractured skull, required treatment consisting of more than fifty stitches in his wounds and spent almost two weeks in hospital;" [3]

  2. "That the plaintiff was guilty of a criminal offence in connection with the said bashing." [3]

 

Issues

 

Whether the matter was capable of conveying the imputation that the plaintiff was guilty of a criminal offence. [1], [3], [23]

 

Ratio Decidendi

 

Principle: The ordinary reasonable person knows that a report that states that a person has been arrested and charged for an offence does not imply that they are guilty of that offence. 

Per Mason J with Gibbs CJ, Wilson J, and Brennan J in agreement:

[16] As we have seen, there is now a strong current of authority supporting the view that a report which does no more than state that a person has been arrested and has been charged with a criminal offence is incapable of bearing the imputation that he is guilty or probably guilty of that offence. ... The ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty. The ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty. Although he knows that many persons charged with a criminal offence are ultimately convicted, he is also aware that guilt or innocence is a question to be determined by a court, generally by a jury, and that not infrequently the person charged is acquitted.

[17] In this situation the reader will view the plaintiff with suspicion, concluding that he is a person suspected by the police of having committed the offence and that they have ground for laying a charge against him. But this does not warrant the conclusion that by reporting the fact of arrest and charge a newspaper is imputing that the person concerned is guilty. 

Principle: The ordinary reasonable person will not convey and imputation which is based off prejudices and factually incorrect beliefs.

At [17] per Mason J with Gibbs CJ, Wilson J, and Brennan J in agreement:

A distinction needs to be drawn between the reader's understanding of what the newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices. It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition. 

 

Holding

 

The matter is not capable of conveying the imputation that the plaintiff is guilty of the criminal offence.

 

Obiter Dicta

 

Principle: A report which states that the plaintiff has been arrested and charged with an offence can be conveyed by the ordinary reasonable person to mean that the police had reasonable cause to suspect that the plaintiff committed the offence. 

At [18]:

Although Sugerman A.C.J. in Rochfort (1972) 1 NSWLR 16 stated that a report of the kind discussed is incapable of bearing an imputation other than what it actually states, namely that the plaintiff has been arrested and charged with an offence,I think that it is capable of bearing the imputation that the police suspected him of having committed the offence and that they had reasonable cause for doing so. That in my opinion is what the ordinary reasonable reader would understand to be conveyed by such a report. His understanding would, as it happens, reflect the conditions according to which in New South Wales a constable is empowered to arrest without a warrant. By s. 352(2) of the Crimes Act 1900 (N.S.W.) a constable is entitled to apprehend without warrant "any person whom he, with reasonable cause, suspects of having committed" an offence. The provisions of the Justices Act 1902 (N.S.W.) regulating the laying of information for indictable offences, which must be on oath, and the laying of informations or complaints for summary offences, which need not be on oath, as a preliminary to the issue of a warrant or summons, do not speak of reasonable cause. But there can be no doubt there must be reasonable cause for the informant's belief that the plaintiff has committed the offence. When the plaintiff is arrested pursuant to a warrant is a s. 23 or s. 59 of the Justices Act, the issue of the warrant is a consequence of the exercise of a judicial discretion by the justice or magistrate issuing the warrant (Ex parte Qantas Airways Ltd.; Re Horsington (1969) 71 SR (NSW) 291, at pp 301, 305-306 ; Halsbury's Laws of England, 4th ed. (1976) vol. 11, par. 95). But the ordinary reasonable reader, unaware of this refinement, will still conclude that it is the informant who suspects, with reasonable cause, that the plaintiff has committed the offence.

This is obiter because both Gibbs CJ at [2] and Brennan J did not think that it was an issue in this case.

 

***

 

[Image: Mr. Peter Baldwin in hospital after the bashing]

 
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Case Summary: Slatyer v Daily Telegraph Newspaper Co Ltd (1908)

 
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Case Summary: Slatyer v Daily Telegraph Newspaper Co Ltd [1908]

 

[x] = case page number

 

Citations

 

Slatyer v Daily Telegraph Newspaper Co Ltd [1908] HCA 22; (1908) 6 CLR 1; 8 SR (NSW) 517; 14 ALR 693

 

Facts

 

Matter:

 

At [1]:

A candidate for election to the House of Representatives was referred to in a newspaper as a “socialistic candidate.” In previous issues of the same newspaper, articles had appeared in which it was stated that the socialistic party were in favour of the nationalization of all industries, to be brought about either by means of a system of taxation which was variously described as a policy of confiscation, a policy of spoliation, a policy of plunder, and the thieving method, or by the purchase by the State of all property at its market value, and electors were urged to ask all socialistic candidates which of these methods they advocated.

 

Imputation:

 

The plaintiff is a socialistic candidate and is in favour of confiscation of all property. 

 

Issue

 

Whether the matter conveys the imputation.

 

Ratio Decidendi

 

The following is my compilation of principles and the case extracts which form the principle. 

Principle: The phrase, 'right thinking member of the community' is replaced with 'a man of fair average intelligence'. Note, this section is referring to the test for whether an imputation is in fact defamatory. 

At [5-6] per Griffith C.J. with O'Connor J. Isaacs J. in agreement:

Street J. stated what he conceived to be the true meaning of the decision [1] : “We are not concerned with the construction which might be put upon them by a perverse minded or unreasonable reader, but what we have to consider is whether any right minded reader of average intelligence could reasonably place upon the words the interpretation which the plaintiff has chosen to put upon them. I do not think that such a reader would or could so interpret them, and in my opinion the plaintiff has altogether failed to show that the words complained of had any libellous tendency, or that they were in any degree calculated to injure his character or reputation in the opinion of right thinking members of the community.” The only criticism that I have to make upon that passage, and indeed upon the whole of the judgment, which, I think, accurately expresses the law and the proper rule to be applied to the case, is as to the use of the phrase “right thinking” which has unfortunately come to have an ambiguous meaning. But, read in the light of the context, it obviously means a man of fair average intelligence.

 

Obiter Dictum

 

Note, Griffith C.J. added the following comment at the end of the case. The other judges, O'Connor J. and Isaacs J., only specified that they concurred with Griffith C.J.'s pervious judgement, not the following comment. Therefore, this comment does not have the support of the majority and is rendered obiter dictum.

Principle: When relying on a true innuendo, the plaintiff must call witnesses to prove that they understood the matter and imputations. 

At [9] per Griffith C.J.:

I only wish to add this, to which I thought that possibly one of my learned brothers would have referred. In this case no evidence was given on behalf of the plaintiff by any independent witness of what he understood by the articles in question. In point of fact some witness should have been called for the purpose of proving that he had read the article and taken it to refer to the plaintiff in the worst sense, if that was the meaning upon which the plaintiff relied. I have noticed that in many cases of defamation of late the plaintiff has been content with his own evidence as to what was the meaning of the article complained of, without calling any evidence of an independent person.

 

Order

 

The matter was held not be capable of conveying the imputation. Appeal dismissed with costs.

 

***

 

[Image: Portrait of Sir Sameul Griffith]

 

 
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Case Summary: Mirror Newspapers Ltd v World Hosts Pty Ltd (1979)

Case Summary: Mirror Newspapers Ltd v World Hosts Pty Ltd

 

Key: [x] = paragraph number

 

Citations

 

Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] HCA 3; (1979) 141 CLR 632; (1979) 23 ALR 167; (1979) 53 ALJR 243

 

Facts

 

Matter:

 

'The Australian' newspaper published an article with the heading, ‘CARPICE OWNER DECLARED BANKRUPT BY COURT’. However, the Newspaper made an error. The restaurant owner did not go bankrupt, instead, the restaurant manager went bankrupt. While the article specified that it was the manager who went bankrupt, a person who only read the heading may think that it was the owner.

 

Imputation:

 

The owner of Caprice Restaurant was financially unsound or insolvent. 

 

Issues

 

  • '...whether the publication, read as a whole, is capable of sustaining the imputation concerning the plaintiff...' [10]

  • Whether the matter has the capacity to convey the defamatory imputation in its natural and ordinary meaning. [18]

 

Ratio Decidendi

 

The following is my compilation of principles and the case extracts which form the principle. 

Principle: Imputations in the 'natural and ordinary meaning' includes conclusions and inference which the ordinary person will make. 

At [14] per Mason and Jacobs JJ With Gibbs J and Stephen J in agreement:

...in the law of defamation the expression "natural and ordinary meaning" has a special and somewhat larger content than it has in the sphere of legal interpretation. It includes inferences and conclusions which the ordinary man draws from the words used; it includes what was described by Lord Reid in Morgan v. Odhams Press Ltd. (1971) 1 WLR 1239, at p 1245; (1971) 2 All ER 1156, at p 1163 as "a certain amount of loose thinking" for, as his Lordship then said: "The ordinary reader does not formulate reasons in his own mind: he gets a general impression and one can expect him to look again before coming to a conclusion and acting on it. But formulated reasons are very often an afterthought."

Principle: For an imputation to be a true innuendo, the imputation must have a secondary meaning additional to, or different from, the natural and ordinary meaning.

At [15] per Mason and Jacobs JJ With Gibbs J and Stephen J in agreement:

When read in conjunction with extrinsic facts, words may, in the law of defamation, have some special or secondary meaning additional to, or different from, their natural and ordinary meaning.

Principle: For an imputation to be a true innuendo, in the absence of extrinsic facts, the matter itself cannot convey the imputation. Thus, to understand the imputation, extrinsic facts are needed.

At [15] per Mason and Jacobs JJ With Gibbs J and Stephen J in agreement:

This special or secondary meaning is not one which the words, viewed in isolation, are capable of sustaining. It is one which a reader acquainted with the extrinsic facts will ascribe to the matter complained of by reason of his knowledge of those facts because he will understand the words in the light of those facts. So, as Lord Devlin said in Lewis v. Daily Telegraph Ltd. (1964) AC, at p 278 , "to say of a man that he was seen to enter a named house would contain a derogatory implication for anyone who knew that the house was a brothel but not for anyone who did not".

Principle: If pleading a true innuendo, the statement of claim must specify that the imputation is a true innuendo. 

At [16] per Mason and Jacobs JJ With Gibbs J and Stephen J in agreement:

If the meaning which the plaintiff sought to ascribe to the report was a natural and ordinary meaning, then the plaintiff had no need to plead an innuendo or to plead and prove extrinsic facts. If, however, the meaning was a special and secondary meaning, the statement of claim should have pleaded the innuendo and the extrinsic facts upon which it depended, it being conceded that at the trial all necessary facts were established by admission or proof.

Principle: If pleading a true innuendo, the statement of claim must specify the extrinsic facts relied upon. 

At [16] per Mason and Jacobs JJ With Gibbs J and Stephen J in agreement:

If the meaning which the plaintiff sought to ascribe to the report was a natural and ordinary meaning, then the plaintiff had no need to plead an innuendo or to plead and prove extrinsic facts. If, however, the meaning was a special and secondary meaning, the statement of claim should have pleaded the innuendo and the extrinsic facts upon which it depended, it being conceded that at the trial all necessary facts were established by admission or proof.

 

***

 

[Image: The Caprice Restaurant on Rose Bay, 1956]

 

 
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Case Summary: Ahmed v Harbour Radio Pty Ltd (No 2)

 
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Case Summary: Ahmed v Harbour Radio Pty Ltd

 

[x] = case paragraph number

 

Citation

 

Ahmed v Harbour Radio Pty Ltd (No 2) [2011] NSWSC 20

 

Facts

 

Matter:

 

This case combines three seperate events which occurred on Radio 2GB (owned by Harbour Radio Pty Ltd). The key issue in this case is the use of the slang or colloquial word, "grub". 

Broadcast 1:

The radio presenter Mr. Ray Hadley:

...outlined what he called "a disturbing story" about the owner of a named seafood shop who, he said, had been convicted of the aggravated indecent assault of a young female employee. He then had a conversation with a caller, who he identified as the father of the victim of the offence. During the course of this conversation a great deal was said that was highly critical of the owner of the seafood shop, who is the husband of the plaintiff. Reference was also made to the plaintiff. Mr Hadley asserted that she had sought, against the father of the victim, an Apprehended Violence Order. Mr Hadley repeatedly referred to the plaintiff's husband as "a grub". At one point he also referred to "his grub of a wife". [4]

Broadcast 2 and 3:

Mr. Hadley read on-air the transcript of the judgment from the pervious case between him and Kim Ahmed. He blended his own interpretation of the judgment and the judgment itself:

"In the conversation Mr Hadley called Mr Ahmed, 'A lowlife, a deviant, a dirty low bastard, this dirty filthy old bloke, this grubby 44-year-old, this grub'. Mr Hadley also made mention of the application [sic - applicant], who, according to the caller, had obtained an AVO against the caller. Mr Hadley called the applicant, 'His grub of a wife'."
...
"I did all of that." [11]

Mr. Hadley then commented:

"This woman, Kim Ann (sic) Ahmed, married to this horrible beast, tried to sue me for defamation and she may well continue ... She's married to a lowlife grub who tried to perform a sexual act on a 17- year-old employee and was convicted of indecent assault and then she tried to line me up in the Federal Court for defamation.

I'll tell who's been defamed in this, the little girl involved with your grub of a husband and her family. That's who's been defamed, you silly silly woman. You've got your just desserts ..." [14]

 

Imputations:

 

Broadcast 1:

"3(a) The Plaintiff is a grub because she remains in business with her husband, a convicted sexual offender." [7]

Broadcast 2 and 3:

"3B (and 3D)
(a) The Plaintiff is a grub because she is married to a convicted sexual offender;
(b) The Plaintiff is unfit to run the business of Seafood Lovers;
(c) The Plaintiff is a silly woman;
(d) The Plaintiff should be driven out of business because of her association with a convicted sexual offender;
(e) The Plaintiff is a grub because she obtained an AVO against a caller to Mr Hadley." [15]

 

Issue

 

The issue was the problem with pleading imputations which contain colloquial or slang word, "grub". At [22]:

The question which arises is whether, in using the word "grub" in the imputations, the plaintiff has discharged the obligation to specify the defamatory meaning which she claims was conveyed.

 

Ratio Decidendi

 

The following is my compilation of principles and the case extracts which form the principle. 

 

Principle: The imputation must be clear, precise and unambiguous. 

At [23]:

There is no doubt in my mind that the word "grub" was intended to, and did in fact, convey a defamatory slur of the plaintiff. There is no non- defamatory meaning that could be attributed to the expression. But that does not mean that its meaning is clear or unambiguous. It does not mean that the imputation pleaded on behalf of the plaintiff is "clear and precise".

 

Principle: When pleading imputations, the imputation must not contain slang or colloquial words. Instead, the colloquialism should be translated into plain language. 

At [25] and [26]:

[25] It is sometimes the case that, by reason of lack of specificity in what is published by a defendant, a plaintiff is hampered in attributing a more precise meaning to the language used by the defendant than that language itself conveys. It is, after all, the language of the defendant: see, for example, Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682. However, the obligation remains upon a plaintiff to identify the defamatory meaning. It is quite possible that the language used by a publisher is so vague or unspecific as to leave open a range of meanings. In such a case, it is insufficient for a plaintiff to adopt, in the imputation, the language used by the defendant, and leave the question of its meaning to the jury, see Singleton v Ffrench (1986) 5 NSWLR 425. It is, of course, possible for a plaintiff to provide alternative translations of the defendant's language; but provide at least one translation a plaintiff must.


[26] This is not to impose too onerous a burden upon a plaintiff. The plaintiff brings proceedings in defamation because he or she asserts that whatever was published by the defendant conveyed a meaning defamatory of him or her. He or she must therefore be able to attribute some meaning to that language. It is articulation of that meaning - ie the meaning (or alternative meanings) for which the plaintiff contends - that is required by UCPR 14.30(2).

 

Orders

 

"(i) Imputations 3(a), 3B(a) and 3B(e), and 3D(a) and 3D(e) are struck out;

(ii) The plaintiff have liberty to re-plead;" [29]

 

Notes

 

This case also provides a useful discussion on the problems of pleading imputations which contain slang or colloquialisms. 

 

In the book Defamation Law by David Rolph, Rolph suggests that the true innuendo may need to be pleaded when the matter contains slang or colloquialisms. See section 6.120/page 102. 

 

***

 

[Image: Ray Hadley]

 

 
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Case Summary: Parmiter v Coupland (1840)

 
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Case Summary: Parmiter v Coupland and Another

 

Citations

 

Parmiter v Coupland and Another [1840] EngR 168; (1840) 6 M & W 105; 151 ER 340

 

Facts

 

The Hampshire Advertiser newspaper published about the late mayor in the borough of Winchester.

The newspaper imputed ‘partial and corrupt conduct, and ignorance of his duties as mayor and justice of the peace for the borough.’

 

Issues

 

  1. Whether the trial judge misdirected the jury that there was a distinction between private and public persons and that pubic persons may be commented on more freely.

  2. Firstly, whether the trial judge misdirected the jury that the definition of libel is whether the publications in question were calculated to be injurious to the character of the plaintiff and secondly, whether the judge misdirected the jury that the jury ought the determine whether the publication was libellous.

 

Ratio Decidendi

 

  1. 'There is a difference between publications relating to public and private individuals. Every subject has a right to comment on those acts of public men which concern him as a subject of the realm, if he do not make his commentary a cloak for malice and slander : but any imputation of wicked or corrupt motives is unquestionably libellous...' (Parke, B. with Alderson , B. and Gurney, B. concurred)

  2. The definition of defamation is, ‘A publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule.’ (Parke, B. with Alderson , B. and Gurney, B. concurred)

  3. 'But it has been [108] the course for a long time for a Judge, in cases of libel, as in other cases of a criminal nature, first to give a legal definition of the offence, and then to leave it to the jury to say, whether the facts necessary to constitute that offence are proved to their satisfaction; and that, whether the libel *342 is the subject of a criminal prosecution, or civil action.' (Parke, B. with Alderson , B. and Gurney, B. concurred)

 

Decision

 

The judge did not misdirect the jury on any of the issues.

 

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[Image: Winchester Combined Court Center]

 
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Case Summary: Sim v Stretch [1936]

 
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Case Summary: Sim v Stretch

 

Citations

 

Sim v Stretch [1936] 2 All ER 1237; 52 TLR 669, HL(E)

 

Case History

 

Trial: At trial, Mr. Stretch submitted two causes of action. Firstly, that Mr. Sim enticed Edith away from Mr. Stretch in order to work for Mr. Sim. Secondly, that the telegraph was a libel. The jury found in favour of Mr. Stretch for both submissions. 

Court of Appeal: Mr. Sim appealed to Court of Appeal for the libel, however, the case was dismissed. 

 

Facts

 

A housemaid named Miss Edith Saville was employed by Mr. Sim. Later, Edith was employed by Mr. Stretch, however, Mr. Sim convinced Edith to work for him again. 

The Sim's sent the Stretch's a telegram which stated: 

'Edith has resumed her service with us to-day. Please send her possessions and the money you borrowed, also her wages, to old Barton. - Sim'

The imputations were that 1) Mr. Stretch was in financial difficulties, 2) he had to borrow and he did borrow money from the housemaid, 3) 'he had failed to pay her wages', 4) and 'he was a person whom no one ought to give credit.' 

 

Issue

 

'...whether the words in their natural and ordinary signification are capable of being defamatory.'

 

Ratio Decidendi

 

Principle: The test for whether an imputation is defamatory is: 'Would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?'

At page 671, Lord Atkin held with Lord Russell and Lord MacMillan in agreement:

Judges and text-book writers alike have found difficulty in defining with precision the word "defamatory." The conventional phrase exposing the plaintiff to hatred, ridicule, or contempt is probably too narrow. The question is complicated by having to consider the person, or class of persons, whose reaction to the publication is the test of the wrongful character of the words used. I do not intend to ask your Lordships to lay down a formal definition, but after collating the opinions of many authorities I propose, in the present case, the test : Would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally ? 

In applying the test, Lord Atkin reasoned that the people who were exposed to the telegram didn't have any knowledge of the Stretch's or the background facts (page 671). Further, Lord Atkin reasoned that it would not lower the reputation of Mr. Stretch by borrowing money from a housemaid as it was a small amount and it was promptly repaid. 

 

Order

 

Appeal allowed. Imputation held to not be defamatory. 

 

Notes

 

I found the original case in The Times Law Reports volume 52, 1935-1936 at the State Library of Victoria in Australia.

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[Image: Portrait of Lord Atkin]

 
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Case Summary: Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443

Case Summary: Ettingshausen v Australian Consolidated Press Ltd

 

Citations

 

Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443; (1991) Aust Torts Reports 81-125

 

Facts

 

The Plaintiff, Andrew Ettingshausen, was a Rugby League football player for the Australian team, the Kangaroos. The defendant published an article about several members of the Kangaroos in a magazine called 'HQ'. On the cover of HQ, it included in phrase, 'PLUS: ... and some naked Kangaroos.' The table of contents included, '94. Hunks Gratuitous nudity, bad language and some fine pectorals C ... On tour with the Kangaroos (the footballers, not the marsupials).'

In the article itself, there was a photograph of several of the Kangaroos' showering. While the photograph was grainy in quality and it was lit from the top and behind, Mr. Ettingshausen's penis could be seen.

The imputations are the following:

(a) The plaintiff deliberately permitted a photograph to be taken of him with his genitals exposed for the purposes of reproduction in a publication with a widespread readership.

(b) The plaintiff is a person whose genitals have been exposed to the readers of the defendant's magazine ‘HQ’, a publication with a widespread readership.

 

Ratio Decidendi

 

Principle: For an imputation to be defamatory under ridicule, the imputation must be capable of subjecting the plaintiff to 'more than a trivial degree of ridicule.'

Hunt J. applied the USA case Burton v Crowell Pub Co 82 F (2d) 154 (1936) and held at page 449:

... I am satisfied that imputation (b) is capable of defaming the plaintiff. Upon the assumption that the ordinary reasonable reader did not conclude that the plaintiff deliberately permitted the photograph to be taken of him with his genitals exposed for reproduction in a publication with a widespread readership — which is the only basis upon which this imputation will fall to be considered — the publication of this imputation is in my view capable of subjecting the entirely blameless plaintiff to a more than a trivial degree of ridicule. It was not seriously argued to the contrary. Accordingly, the imputation is capable of defaming the plaintiff.

 

 

Case Summary: Villers v Monsley (1769)

Case Summary: Villers v Monsley

 

Citation 

 

Villers v Monsley (1769) 2 Wils. K.B. 403; 95 E.R. 886

 

Facts

 

Monsley published the following letter:

Old Villers, so strong of brimstone you smell,
As if not long since you had got out of hell ;
But this damnable smell I can no longer bear,
Therefore I desire you would come no more here ;
You old stinking, old nasty, old itchy old toad,
If you come any more, you shall pay for your board,
You'll therefore take this as a warning from me,
And never more enter the doors, while they belong to J. P.

"Wilncoat, December 4, 1767."

 

The imputation was that Villers' smelt badly and he had a disease. 

 

Ratio Decidendi

 

Wilmot Lord C.J.

 

Wilmot Lord C.J. held at page 887:

...if any man deliberately or maliciously publishes any thing in writing concerning another which renders him ridiculous, or tends to hinder mankind from associating or having intercourse with him, an action well lies against such publisher.

In applying the rule, Wilmot had the view that this case was no different case which found imputations leprosy and plague to be libellous.(887) He also stated at page 887:

Nobody will eat, drink, or have any intercourse with a person who has the itch and stinks of brimstone; therefore I think this libel actionable, and that judgment must be for the plaintiff. 

Gould J. 

 

Gould J. held at 887:

...there is a distinction between libels and words ; a libel is punishable both criminally and by action, when speaking the words would not be punishable in either way ; for speaking rogue and rascal of any one, an action will not lie; but if those words were written and published of anyone, I doubt not an action would lie.

He applied the rule by stating:

If one man should say of another that he has the itch, without more, an action would not lie; but if be should write those words of another, and publish them maliciously, as in the present case, I have no doubt at all but the action well lies.

He then explains the rationale for rendering such imputations libellous:

What is the reason why saying a man has the leprosy or plague is actionable? It is because the having of either cuts a man off from society ; so the writing and publishing maliciously that a man has the itch and stinks of brimstone, cuts him off from society.

 

***

 

[Image: The Country of Warwick Court House in England]

 

 
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Case Summary: Radio 2UE Sydney Pty Ltd v Chesterton [2009]

Case Summary: Radio 2UE Sydney Pty Ltd v Chesterton

 

Note, [x] = case paragraph number. 

 

Citations

 

Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; 238 CLR 460; 83 ALJR 654; 254 ALR 606

 

Facts

 

A journalist at Radio 2UE Sydney during the John Rawls Morning Show said:

Well that bombastic, beerbellied buffoon Ray Chesterton, writes a column in the Telegraph called 'The Final Word'. Well it's not the final word today. What's the matter with you Ray? I mean, you know, I always knew you were a bit of a creep, but can't you get over it? He was fired by 2UE and blames me for it. He's never got over it and he talks about the Joey Johns saga and say (sic) Meanwhile the Johns saga is starting to run out of motivation. You know that when 70yearold disc jockeys are drawn into the fray to support the argument. I talked to Joey Johns because I wanted to, because he is a friend of mine, a word you probably wouldn't understand because I doubt you'd have any, and those that you do have call you 'Ankles' and for a very good reason. I don't know. Why can't you get over it, Ray? I mean, you used to enjoy going to my farm and I used to give you the house and you used to take your family and your children up there. I was very happy that all that took place. But why can't you get over it? Well, I suppose you have some kind of inferiority complex. Well, I have to tell you, I have never met a man who deserved one more. [13]

The pleaded imputations are as follows:

(a) the plaintiff is a creep in that he is an unpleasant and repellent person;

(b) the plaintiff is a bombastic, beerbellied buffoon;

(c) that as a journalist the plaintiff is not to be taken seriously;

(d) the plaintiff was fired from Radio 2UE;

(e) the plaintiff falsely accuses John Laws of being responsible for his dismissal from Radio 2UE;

(f) the plaintiff is an ungrateful person in that he accepted the hospitality of John Laws and then attacked him. [14]

 

Case History

 

Trial: Trial, the judge held that the imputations were capable of being conveyed, and the imputations were capable of being defamatory. The jury held that the imputations were conveyed, and the imputations were defamatory. [15]

New South Wales Court of Appeal: Radio 2UE submitted that the trial judge erred in her directions to the jury. The trial judge applied the case Aleksandra Gacic & Ors v John Fairfax Publications Pty Limited & Anor [2006] NSWCA 17528 in her jury directions. Radio 2UE Sydney submitted that the decision in Gacic was incorrect and the Court should not follow Gacic. [28] The appeal was dismissed.

 

Issues

 

  1. “…whether the general test for defamation has application to imputations concerning a person's business or professional reputation, or whether it is limited to those concerning the character or conduct of that person.” [12]

  2. “…whether the hypothetical referees are to be drawn from a class of persons who have particular knowledge associated with the business or profession.” [12]

 

Ratio Decidendi

 

This case is very dense and in my opinion, many principles can be extracted. The following is my compilation of principles and the case extracts which form the principle. I note that many principles overlap with each other. 

 

The 'general test' for defamation: 

The majority rephrased the general test several times throughout the case.

At [3]:

A person's reputation may therefore be said to be injured when the esteem in which that person is held by the community is diminished in some respect. 

At [36]:

...whether it be stated as whether a person's standing in the community, or the estimation in which people hold that person, has been lowered or simply whether the imputation is likely to cause people to think the less of a plaintiff.

At [60]: 

The likelihood that the ordinary reasonable person may think the less of a plaintiff...

Principle: The imputation must damage the plaintiff's reputation. 

At [32], the majority stated that the court of appeal in Aleksandra Gacic & Ors v John Fairfax Publications Pty Limited & Anor [2006] NSWCA 175 incorrectly assumed that damage must occur to the person’s business, not necessarily to the person’s reputation. The majority held corrected the assumption and held at [32], ‘It is disparagement of reputation which is the essence of an action for defamation.’ 

Principle: To determine whether a person's reputation is damaged, the general test must be applied. 

The majority stated at [36]:

A conclusion as to whether injury to reputation has occurred is the answer to the question posed by the general test, whether it be stated as whether a person's standing in the community, or the estimation in which people hold that person, has been lowered or simply whether the imputation is likely to cause people to think the less of a plaintiff.

Principle: The general test applies to a person's personal reputation and a person's business reputation. 

At [36] the majority held:

The concept of "reputation" in the law of defamation comprehends all aspects of a person's standing in the community. It has been observed that phrases such as "business reputation" or "reputation for honesty" may sometimes obscure this fact. In principle therefore the general test for defamation should apply to an imputation concerning any aspect of a person's reputation. A conclusion as to whether injury to reputation has occurred is the answer to the question posed by the general test, whether it be stated as whether a person's standing in the community, or the estimation in which people hold that person, has been lowered or simply whether the imputation is likely to cause people to think the less of a plaintiff. An imputation which defames a person in their professional or business reputation does not have a different effect. It will cause people to think the less of that person in that aspect of their reputation. For any imputation to be actionable, whether it reflects upon a person's character or their business or professional reputation, the test must be satisfied.

Also at [46]:

That moral or ethical standards held by the general community may be relevant to imputations which reflect upon a person's business or professional reputation does not suggest a true dichotomy as between imputations of that kind and those as to character, with different standards applying to each. Rather it confirms as practicable the general test as applying in all cases involving all aspects of reputation.

And at [60], 'The general test for defamation is relevant to all imputations which are said to have injured a plaintiff's reputation in some respect.'

Principle: An imputation that damages a person's business, or occupation, or profession does not constitute defamation. The imputation must damage the person's business reputation, or occupational reputation, or professional reputation. Damage to reputation is at the heart of defamation. 

The majority stated:

[11] The remedy which the law provides for injury to a person's business or professional reputation must be distinguished from that for malicious statements which result in damage not to the reputation but to the business or goods of a person. The former is provided by an action for defamation, the latter by that for injurious falsehood. Lord Esher MR explained the distinction in South Hetton Coal Co Ltd v North‑Eastern News Association Ltd. A false statement that a wine merchant's wine is not good, which is intended to and does cause loss to the wine merchant's business, is an injurious (or "malicious") falsehood. A statement reflecting upon that person's judgment about the selection of wine, and therefore upon the conduct of his business, may be defamatory of him. Gummow J observed in Palmer Bruyn & Parker Pty Ltd v Parsons that the action for injurious falsehood is more closely allied to an action for deceit.

[12] The distinction between defamation and injurious falsehood has some relevance to these proceedings, which are brought under the Defamation Act 1974 (NSW). That Act repealed the Defamation Act 1958 (NSW). The 1958 Act imported a meaning of defamation from the Criminal Code (Q), which was extended beyond that of the common law and included injurious falsehood. The common law requirement that the plaintiff's reputation be disparaged, for matter to be found defamatory, was thereby removed. It was sufficient, relevantly, that an imputation concerned the plaintiff and was likely to injure the plaintiff in his or her profession or trade. The 1974 Act reverted to the common law requirements of what is defamatory. Accordingly for present purposes, a publication must have an effect upon the reputation of the plaintiff rather than upon the business, trade or profession of the plaintiff as such.

Principle: There is not necessarily a dichotomy between a person's business reputation a person's character. 

The majority stated at [46]:

That moral or ethical standards held by the general community may be relevant to imputations which reflect upon a person's business or professional reputation does not suggest a true dichotomy as between imputations of that kind and those as to character, with different standards applying to each. Rather it confirms as practicable the general test as applying in all cases involving all aspects of reputation.

Principle: Whether a person has been lowered in the estimation of others, is not restricted to whether a person has been morally or ethically lowered in the estimation of others. It is an open test.

The majority stated:

[37] The reference in the general test, as stated in Sim v Stretch , to a plaintiff being "lowered in the estimation" of the hypothetical referee does not imply the exercise of a moral judgment, on their part, about the plaintiff because of what is said about that person. It does not import particular standards, those of a moral or ethical nature, to the assessment of the imputations. It simply conveys a loss of standing in some respect.

[38] The expression "rightthinking" should not be taken to refer to the application by the hypothetical referee of moral or social standards, those referable to general character. Such an approach might also limit the application of the general test. It should be understood as a rejection of a wrong standard, one not held by the community. It should be taken to describe a person who shares the standards of the general community and will apply them.
...
[42] Any standards which might be applied by the ordinary reasonable reader will vary according to the nature of the imputation. It should not be assumed that such standards are limited to those of a moral or ethical kind, such as may reflect upon a person's character.
...
[43] There are many standards held within the general community which are not of a moral or ethical kind but which may be relevant to an assessment of whether a person's standing in the community has been lowered.
...
[47] The focus upon moral or ethical standards, in discussions about standards of the community, no doubt reflects the fact that they are the standards most often identified as relevant in actions for defamation. There are obviously other standards, for example as to the behaviour expected of persons within the community, which may not involve a sense of wrongdoing.

Principle: The standards in which the ordinary reasonable reader applies, will vary according to nature of the imputation.

The majority stated at:

[42] Any standards which might be applied by the ordinary reasonable reader will vary according to the nature of the imputation. It should not be assumed that such standards are limited to those of a moral or ethical kind, such as may reflect upon a person's character. It should not be assumed that moral standards have no relevance to imputations concerning a person's business or professional reputation. And it should not be assumed that it will be necessary in every case to apply a standard in order to conclude that a plaintiff's reputation has been injured.

[33] There are many standards held within the general community which are not of a moral or ethical kind but which may be relevant to an assessment of whether a person's standing in the community has been lowered.

Principle: Community standards do not form part of the general test. 

The majority stated at [41]:

It is important to distinguish between the general test for defamation and any general community standards which may be relevant in a particular case. Some such standards may be necessary to the assessment of the effect of an imputation upon the reputation of the plaintiff, but they do not form part of the test. ... This should be restated as a separation of the general test from the standards which the ordinary reasonable person might consider relevant and apply.

At at [60], 'That a particular imputation may not require the application of a community standard does not render the general test inapplicable.'

Principle: The ordinary reasonable reader does not apply particular moral standards, instead, they apply community standards generally. 

At [40], the majority stated the ordinary reasonable reader, 'does not necessarily import a particular social standard.'

The majority provide commentary on the case Reader's Digest Services Pty Ltd v Lamb at [44]:

Reader's Digest Services Pty Ltd v Lamb concerned the admissibility of evidence that the conduct attributed to the plaintiff amounted to a breach of a code of ethics or a standard of behaviour which was required of him as a journalist. The question which arose was whether the standards contained in the code were to be applied in determining whether the publication was defamatory. It was held that they were not admissible for that purpose, as they did not reflect general community standards but rather the attitude of a particular group or class. The general community standards of which his Honour spoke were not expressed to be moral standards but shared moral or social standards.

Principle: The ordinary reasonable reader holds the views of the general community.

At [38]:

It should be taken to describe a person who shares the standards of the general community and will apply them.

At [40]

It confirms that the hypothetical referee is a person who will apply general community standards.

Principle: The ordinary reasonable reader does not apply particular standards, but they exclude the wrong standards. 

The majority stated:

[38] The expression "right-thinking" should not be taken to refer to the application by the hypothetical referee of moral or social standards, those referable to general character. Such an approach might also limit the application of the general test. It should be understood as a rejection of a wrong standard, one not held by the community.
...
[40] ... Such a description may serve to distinguish a person in society who abides by its standards, values and rules, from a person who does not. ... The expression does not necessarily import a particular social standard. It may be seen as a benchmark by which some views would be excluded from consideration as unacceptable.

Principle: Moral standards may be relevant for imputations in relation to a person's business reputation where appropriate. 

At [42], the majority stated, 'It should not be assumed that moral standards have no relevance to imputations concerning a person's business or professional reputation.'

Also, at [45], the majority stated:

Moral or ethical standards may be relevant to imputations about a person's business or professional reputation, for example those concerning a person's honesty or fidelity (Jones v Jones [1916] 2 AC 481 at 491 per Viscount Haldane) in the conduct of a business or profession, failure to conform to relevant ethical standards pertaining to that profession (Angel v H H Bushell & Co Ltd [1968] 1 QB 813 at 825826 per Milmo J) or which suggest misconduct in the discharge of professional duties (Odgers, A Digest of the Law of Libel and Slander, 6th ed (1929) at 46). Some statements may convey more than one meaning and bring into question moral or ethical standards as well as conveying a lack of ability to carry on a business or profession. A charge of unfitness for office furnishes an example. Closer to the present case, a statement that a person has been fired by their employer may provide another.

Principle: It is not necessary to identify the community standard when it is plainly obvious that the imputation will cause people to think less of the plaintiff.

The majority stated:

[47] ... In some cases injury to reputation may appear so obvious that a standard, which may unconsciously be applied, is not identified. And in some cases such a conclusion may be possible without the need to identify a standard. It may be obvious that people will be thought the less of simply because of what is said about them.

[48] The imputations in Gacic were considered to fall within this latter category. Another example may be the attribution of authorship of a work of very inferior quality, which may be taken to affect an established author's high reputation, without more (Ridge v The English Illustrated Magazine (Limited) (1913) 29 TLR 592). Whether a social standard applies to an imputation of a person's lack of competence to carry out a profession or business may not be so clear, particularly where it is also conveyed that the person held themselves out as competent and for reward. It is not necessary to determine such questions; in each case the plaintiff will have been defamed because he or she has suffered a loss of reputation. The applicability of the general test towards that conclusion cannot be denied because a general community standard does not apply in a particular case. The test does not depend for its exercise upon the existence of standards.
...
[60] That a particular imputation may not require the application of a community standard does not render the general test inapplicable.

Also, as another example, see Hardie v H&WT & Anor [2016] VSCA 103 at [44]. 

Principle: The meaning of expression 'right-thinking' from Sim v Stretch:

The majority stated:

[38] The expression "right‑thinking" should not be taken to refer to the application by the hypothetical referee of moral or social standards, those referable to general character. Such an approach might also limit the application of the general test. It should be understood as a rejection of a wrong standard, one not held by the community. It should be taken to describe a person who shares the standards of the general community and will apply them.

[39] The expression has been criticised. Griffith CJ in Slatyer v The Daily Telegraph Newspaper Co Ltd considered it to be ambiguous, but thought that it was intended to refer to a person of "fair average intelligence" and otherwise accepted the test as stated in Sim v Stretch. Murphy J in Reader's Digest Services Pty Ltd v Lamb also thought its meaning was unclear. Bray CJ in Potts v Moran considered that it involved "question‑begging assumptions and circuity of reasoning." 

[40] The term most clearly implies a standard of decency in a person. The references in Gardiner v John Fairfax & Sons Pty Ltd and in John Fairfax Publications Pty Ltd v Gacic to the hypothetical referees as being ordinary decent persons, or folk, appear to accept this to be the case. Such a description may serve to distinguish a person in society who abides by its standards, values and rules, from a person who does not. A difference of perspective about the position of an informer to police illustrates this point. It was said of such a person that "[t]he very circumstances which will make a person be regarded with disfavour by the criminal classes will raise his character in the estimation of right‑thinking men". The expression does not necessarily import a particular social standard. It may be seen as a benchmark by which some views would be excluded from consideration as unacceptable. It confirms that the hypothetical referee is a person who will apply general community standards. It may be taken to refer to ordinary decent persons[81].

 

Order

 

Appeal dismissed. 

Case Summary: Morgan v Lingen (1863)

Case Summary: Morgan v Lingen

 

Citation

 

Morgan v Lingen (1863) 8 LT (NS) 800

 

Facts

 

Ms. Morgan was a governess in the city of Hereford in England. At a flower show, Ms. Morgan and Mrs. Lingen passed each other and Mrs. Lingen cried out that Ms. Morgan had pushed her and struck her on the arm. 

Mr. Lingen sent a letter to various people which stated that he had no doubt that Ms. Morgan's mind had been affected, that she appeared to be off her head, and that she had the delusion that Mrs. Lingen stood in her way at the flower show. 

The imputation is that Ms. Morgan is insane. 

 

Ratio Decidendi

 

Principle: An imputation of insanity is presumed to be defamatory. 

At page 801, it was held:

...a statement in writing that a lady's mind is affected, and that seriously, is without explanation prima facie a libel, and therefore the letter to Mrs. Williams of the 5th of September was prima facie a libel. 

Principle: A valid defence is in the circumstance where the defendant thought it was a duty to inform and the defendant informed quickly, honestly, and without malice. 

At page 801, it was held:

Such a publication is malicious unless made by a person in discharge of a public or private duty out of a matter in which he is concerned, made without malice; but, if fairly warranted by any reasonable exigency and honestly made, it would be privileged. 

In this case, at page 801, the defendant submitted:

...he had never imputed actual insanity to the plaintiff, but that he had only communicated his honest belief that she laboured under delusions of monomania, and that from other circumstances that had been communicated to him and her conduct at the flower show, he thought it had become his duty to her relations and that who took an interest in her his opinion on the subject.

 

Order

 

Verdict for the defendant, Mr. Lingen. 

Case Summary: Youssoupoff v Metro-Goldwyn-Mayer Pictures Limited (1934)

Case Summary: Youssoupoff v Metro-Goldwyn-Mayer

 

Citation

 

Youssoupoff v Metro-Goldwyn-Mayer (1934) 50 TLR 581, CA

 

Case History

 

The jury found in favour of Youssoupoff. 

 

Facts

 

Metro-Goldwyn-Mayer Limited produced a film in which a man named Rasputin brought about the destruction of Russia but was subsequently murdered by Prince Chegodieff and others. In the film, Princess Natasha had sexual relations with Prince Chegodieff, one the murderers of Rasputin, but was also raped by Rasputin. In real life, Princess Irina Youssoupoff was married to Prince Youssoupoff, the man who assisted in the murder of Rasputin. The film was a combination of both fiction and real life facts.  

The imputation is that Princess Irina Youssoupoff was raped by Rasputin. 

 

Issues

 

  1. Lord Justice Scrutton: '[The defendants] say there was no evidence on which a jury, properly directed, could find that reasonable people would understand the Princess Natasha of the film to be Princess Irina, the plaintiff.' (Page 582)

  2. Lord Justice Scrutton: '[The defendants] say that if we are to take the Princess Natasha of the film to be identified with Princess Irina, the plaintiff, there was no evidence on which a jury, reasonably directed, could find the film to be defamatory of the plaintiff.' (Page 582)

  3. Lord Justice Scrutton: '[The defendants] say: "Assuming both of those points are decided against us, the damages were excessive. They were such as no jury, properly directed, could give in the cirumstances of the case."' (Page 582)

 

Ratio Decidendi

 

Principle: The imputation may be defamatory if it 'tends to make the plaintiff shunned or avoided...' 

Lord Justice Slesser stated at page 587:

...not only is a matter defamatory if it brings the plaintiff into hatred, ridicule, or contempt, by reason of some moral discredit on her part, but also if it tends to make the plaintiff shunned or avoided and without any moral discredit or her behalf.

Slesser applied the principle at page 587: 

One may, I think, take judicial notice of the fact that a lady of whom it has been said that she has been ravished, albeit against her will, has suffered in social reputation and opportunities of receiving respectful consideration of the world.

Principle: For an imputation to be defamatory, it is irrelevant whether the plaintiff was at fault or immoral.

Lord Justice Slesser stated at page 587:

I, for myself, cannot see that from the plaintiff's point of view it matters in the least whether this libel suggests that she has been seduced or ravished. The question whether she is or she is not the more or the less moral seems to me immaterial in considering this question whether she has been defamed...

 

Notes

 

I found the original case in The Times Law Reports volume 50, 1933-1934 at the State Library of Victoria in Australia.

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