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