Step 2: Is the imputation defamatory?

This article is one part in a series of in-depth articles on the law of defamation in Australia. It is written for both the legal practitioner and non-legal practitioner alike. If you would prefer to read a quick overview of defamation, click here.  

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Step 2: Is the imputation defamatory?

 

After step 1 is completed, that is, after the matter’s imputation is established, the next step is to determine whether the imputation is in fact defamatory. The legislation does not address this section of the law, instead it is found in the common law.[1]

There are several separate tests to establish whether the meaning is defamatory. They are as follows:

1.     General Test;

2.     Shunned or Avoided;

3.     Hatred, Contempt, or Ridicule.

More than one test is not needed to satisfy a defamatory imputation. The ‘general test’ is seen to be the primary test and the other tests are seen as exceptions to the general test.

 

I.   The General Test

 

The general test for whether an imputation is defamatory is found in Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16:

[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.

[36] …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.
 

The principles for the general test include:

 

1. THE IMPUTATION MUST DAMAGE THE PLAINTIFF’S REPUTATION

 

The imputation must damage the plaintiff’s reputation. This principle has been re-expressed many times over.[2] For example, in Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16, it was submitted that during the trial judge’s directions to the jury, she incorrectly gave the impression that damage must occur to the person’s business, not necessarily to the person’s reputation. The majority held at [32], ‘It is disparagement of reputation which is the essence of an action for defamation.’

     

    2. TO DETERMINE WHETHER THE PLAINTIFF’S REPUTATION HAS BEEN DAMAGED, THE IMPUTATION MUST LIKELY CAUSE PEOPLE TO THINK LESS OF THE PLAINTIFF

     

    To determine whether the plaintiff’s reputation has been damaged, the imputation must likely cause people to think less of the plaintiff.

    In Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16, the majority stated at [36]:

     ‘…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.’:

    For example, in the classic case Sim v Stretch [1936] 2 All ER 1237, a handmaid was employed by the Sim’s and later employed by the Stretch’s. The Sim’s persuaded the handmaid to work for them again and subsequently sent a telegraph to the Stretch’s which said, ‘[The handmaid] has resumed her service with us today. Please send her possessions and the money you borrowed, also her wages…”. The imputation was that the Stretch’s were in financial difficulties, however, the imputation was held not to be defamatory.

    In Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632, 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. The article did specify that it was the manager that went bankrupt, however, a person that read the heading may think it was the owner. The restaurant owner sued for defamation with the imputation that he was financially unsound. The High Court held that the imputation was defamatory.

    This principle has been re-expressed many times over. q Expand to Read More

    The following phrases are different expressions of the one point:

    • ‘…[whether the publication would] tend to lower the plaintiff in the estimation of right-thinking members of society generally.’: Sim v Stretch [1936] 2 All ER 1237 at 1240. However, the words ‘right-thinking’ have been criticised on several occasions. In Slatyer v Daily Telephraph Co Ltd (1908) 6 CLR 1 at 7:

    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.

    And in Potts v Moran (1976) 16 SASR 284 at 303:

    I prefer to make the criterion the estimation of the reasonable man rather than the right thinking man, a phrase which, to my mind, involves questionbegging assumptions and circuity of reasoning. It is hard to feel much confidence in a conclusion drawn from a conflation of the two propositions, “This conduct is wrong because right thinking persons condemn it” and “Right thinking persons condemn this conduct because it is wrong”.

    Finally, in Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [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.

    • ‘…[whether the publication] is likely to cause ordinary decent folk in the community, taken in general, to think the less of [the plaintiff].’: Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR(NSW) 171 at 172 per Jordan CJ.
       
    • ‘[The publication is] of a kind that is likely to lead ordinary decent folk to think less of the person about whom it is made.’: Consolidated Trust Co Ltd v Browne(1948) 49 SR (NSW) 86 at 88.
       
    • ‘…a statement about the plaintiff of a kind likely to lead the recipient as an ordinary person to think the less of him.’: Mirror Newspapers Ltd. V. World Hosts Pty. Ltd. (1979) 141 CLR 632 at [11].
       
    • ‘To be defamatory of the plaintiff, the imputation relied upon must be such as is likely to cause ordinary decent folk in the community, taken in general, to think the less of him.’: Boyd v Mirror Newspapers [1980] 2 NSWLR 449 at 452 (per Hunt J).
       
    • ‘So far as is relevant to the matter now under consideration, the legal issue which had to be decided was whether the material complained of was defamatory of the plaintiff in the sense that it was to his "discredit ... [tended] to lower him in the estimation of others [(Gatley on Libel and Slander, 8th ed (1981) par 31)].’: Chakravarti v Advertiser Newspapers Limited [1998] HCA 37 at [57].
       
    • ‘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.’: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [3].
       
    • ‘…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.’: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [36].

    Note, whether the plaintiff’s reputation has been lowered does not necessarily mean whether the plaintiff’s moral standing has been lowered: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [37].[5]

     

    I. A)   Business/Professional/Trade Reputation

     

    A person can be defamed not only in their personal reputation but also in their business/profession/trade reputation.

    For example, in Mirror Newspapers v Jools [1985] FCA 181 the Daily Telegraph gave the impression in an article that a surgeon made a mistake during an operation which caused the death of a patient. The imputation was that the surgeon was incompetent/negligent. However, it was the anaesthetist that made the mistake, not the surgeon.

    Also, in Rogers v Nationwide News Pty Limited [2003] HCA 52, the Daily Telegraph reported that a surgeon’s patient became blind due to the surgeon’s negligence. The imputation was that the patient became blind due to the surgeon’s inadequate performance. However, the surgery itself, even when performed to perfection, carries the risk that the patient will become blind. The patient became blind due to the type of surgery, not due to the performance of the surgeon. 

    Another example is in Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225, three newspapers published that a building was leaking substantial amounts of water. The imputation was that the architect who designed the building was incompetent.

    See endnote for more cases.[6]

    A defamatory imputation may include a ‘lack of qualification, knowledge, skill, capacity, judgment or efficiency in the conduct of his trade or business or professional capacity.’: Drummond-Jackson v British Medical Association [1970] 1 WLR 688 at 699. An imputation of dishonesty may also be defamatory: In Mularczyk v John Fairfax Publications Pty Ltd [2001] NSWCA 467 at [34] and endorsed in Charlwood Industries Pty Ltd v Brent [2002] NSWCA 201 at [19].[7]

     

    The principles for business/professional/trade reputation include:

     

    1. THE SAME GENERAL TEST APPLIES TO A PERSON’S PERSONAL REPUTATION, A PERSON’S BUSINESS REPUTATION, OR A PERSON’S PROFESSIONAL REPUTATION

     

    The same general test applies to a person’s personal reputation, a person’s business reputation, or a person’s professional reputation: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [36]:

    q Expand to Read Case Extract

    Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [36]:

    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.

     

    2. IF THE IMPUTATION IS IN RELATION TO A PERSON’S BUSINESS, THE IMPUTATION MUST INVOLVE ‘SOME REFLECTION UPON HIS PERSONAL CHARACTER OR UPON THE MODE IN WHICH HE CARRIES ON HIS BUSINESS, HIS BUSINESS REPUTATION'
     

    If the imputation is in relation to a person’s business, the imputation must involve ‘some reflection upon his personal character or upon the mode in which he carries on his business, his business reputation.’: Sungravure Pty Ltd V Middle East Airlines Airliban SAL (1975) 134 CLR 1 at [13]. In John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28, Gleeson CJ And Crennan J at [2] provides a hypothetical example:

    Suppose someone says: "X is a thoroughly decent person, but he is showing signs of age; his eyesight is poor, and his hands tremble". That would not be a reflection on X's character. It would be likely to evoke sympathy rather than hatred, ridicule or contempt. If, however, X were a surgeon, the statement could be damaging. To say that someone is a good person, but a dangerously incompetent surgeon, is clearly likely to injure the person's professional reputation.

    In Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16, French CJ, Gummow, Kiefel And Bell JJ restated this principle at [10]:

    It is not in dispute that persons may be defamed in their business reputation. The common law has for some time recognised that words may not only reflect adversely upon a person's private character, but may injure a person in his or her office, profession, business or trade. This may be so where the words reflect upon the person's fitness or ability to undertake what is necessary to that business, profession or trade. But in each case the injury spoken of is that to the person's reputation.

    The majority also state in Radio 2UE that there is not necessarily a dichotomy between a person's character and their business reputation. 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.

     

    3. REPUTATIONAL DAMAGE TO A PERSON’S BUSINESS OR GOODS DOES NOT CONSTITUTE DEFAMATION

     

    Reputational damage to a person’s business or goods does not constitute defamation. Damage to a person’s business reputation does qualify for defamation. Note the distinction between the two. In Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA:

    [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] … 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.

     

    4. A DEFAMATORY IMPUTATION DOES NOT REQUIRE AN IMPUTATION OF MORAL FAULT OR DEFECT IN PERSONAL CHARACTER

     

    A defamatory imputation does not require an imputation of moral fault or defect in personal character. In Drummond-Jackson v British Medical Association [1970] 1 WLR 688 at 699 Lord Pearson held, ‘…words may be defamatory of a trader or business man or professional man, though they do not impute any moral fault or defect of personal character.’

     

    II.   Shunned or Avoided

     

    Another test for whether the imputation is defamatory is if the imputation causes others to shun or avoid the plaintiff. In Youssoupoff v MGM Pictures Ltd (1934) 50 TLR 581 at 587:

    … the matter is defamatory … if it tends to make the plaintiff be shunned and avoided and that without any moral discredit on their part … [those people] have been held to be entitled to bring an action to protect their reputation and honour.

    One may, I think, take judicial note 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 in opportunities of receiving respectful consideration of the world.

    This was restated by the High Court in Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [4]:

    It was also accepted, as something of an exception to the requirement that there be damage to a plaintiff's reputation, that matter might be defamatory if it caused a plaintiff to be shunned or avoided, which is to say excluded from society.

    The spectrum of imputations, according to Matthew Collins in Collins on Defamation, have largely been confided to contagious or infectious diseases, insanity, and rape.[3] In Berkoff v Burchill [1996] 4 All ER 1008, Millet L.J. at [2] states that most decision have ‘been allegations of fact: illness, madness, filthiness or defilement.’

    Some examples of 'shunned or avoided' include:

    In Youssoupoff v MGM Pictures Ltd (1934) 50 TLR 581 a woman was falsely accused of being raped. In Morgan v Lingen (1863) 8 LT 800, the plaintiff was accused of being insane. In Henry v TVW Enterprises Ltd (1990) 3 WAR 474, an imputation of hepatitis B was held to be defamatory.

    In the old case of Villers v Monsley (1769) 2 Wils 403, the plaintiff was falsely accused of having a serious contagious or infectious disease. The defendant had written about the plaintiff saying that he smelt of brimstone and one of the lines included, ‘You old stinking, old nasty, old itchy old toad…’ Lord Wilmot, CJ held:

    . . . 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. I see no difference between this and the cases of leprosy and plague; and it is admitted that an action lies in those cases . . . 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 concurring with Wilmot, CJ held:

    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. I think the publishing any thing of a man that renders him ridiculous is a libel and actionable . . .

    In Zbyszko v New York American Inc (1930) 239 NYS 411, the plaintiff, a wrestler, was compared having the appearance of a primitive gorilla. McAvoy J stated:

    The usual allegations as to the defamatory words and pictures are set out, to wit, that they were wholly false and untrue; that the plaintiff enjoyed an international reputation for dignity, fine traits of human character, kindliness, intelligence and culture; that besides being a person of prominence in the field of national and international sports and athletics, the plaintiff was a business man who had many business dealings both in this country and abroad with many worthy persons, who treated and received him on the basis of equality, both physically and intellectually; that the said defamatory words and pictures held up the plaintiff to public contempt, disgrace, hatred, infamy and reproach, caused him to be shunned and avoided and to be treated as an outcast by his wife, relatives, neighbors, friends and business associates, and injured him in his professional calling and deprived him of his standing among good and worthy people. 

    Referring to the plaintiff as ugly does not cause people to shun and avoid the plaintiff. In Berkoff v Burchill [1996] 4 All ER 1008, the imputation was that the plaintiff was hideously ugly. Phillips LJ held:

    It is not easy to find the touchstone by which to judge whether words are defamatory which tend to make other persons shun or avoid the plaintiff, but it is axiomatic that the words must relate to an attribute of the plaintiff in respect of which hearsay alone is enough to provoke this reaction. That was once true of a statement that a woman had been raped and would still be true of a statement that a person has a serious infectious or contagious disease, or is physically unwholesome or is mentally deranged. There is precedent for holding all such statements defamatory. There is, however, with one possible exception, no precedent for holding it defamatory to describe a person as ugly. In my judgment, such a statement differs in principle from those statements about a person's physical condition which have been held to be defamatory. Those statements have, in every case, been allegations of fact -- illness, madness, filthiness or defilement. Hearsay factual statements about a person's physical condition can clearly be capable of causing those who hear or read them to avoid the subject of them. In contrast, a statement that a person is ugly, or hideously ugly, is a statement of subjective appreciation of that individual's features. To a degree both beauty and ugliness are in the eye of the beholder. It is, perhaps, just possible to think of a right minded person shunning one of his fellow men because of a subjective distaste for his features. What I find impossible to accept is that a right minded person would shun another merely because a third party had expressed distaste for that other person's features.

    My conclusion is that a statement that a person is hideously ugly does not fall into that category of statements that are defamatory because they tend to make people shun or avoid the plaintiff.

     

    The principles for 'shunned or avoided' include:

     

    1. IT IS NOT A REQUIREMENT THAT THE PLAINTIFF’S REPUTATION IS DAMAGED

     

    It is not a requirement that the plaintiff’s reputation is damaged. In Sungravure Pty Ltd V Middle East Airlines Airliban SAL (1975) 134 CLR 1 at [54]:

    Imputations by which others are likely to be caused to shun or avoid the plaintiff depend not on damage to the plaintiff's reputation, but on the tendency of the imputation to exclude the plaintiff from society.

     

    2. IT IS IRRELEVANT WHETHER THE PLAINTIFF IS AT FAULT OR WHETHER THE PLAINTIFF IS IMMORAL

     

    It is irrelevant whether the plaintiff is at fault or whether the plaintiff is immoral. In Alexander v. Jenkins (1892) 1 Q.B. 797, at p 800 Lord Herschell said, ‘It is not necessary that there should be imputation of immoral or disgraceful conduct.' This is affirmed by John Fairfax v Punch (1980) 31 ALR 624 at 632 – 633 and Random House Australia Pty Ltd v Abbott [1999] FCA 1538 at [22].

    In Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 587, ‘[t]he question whether [the plaintiff] is or is not the more or less moral seems … immaterial in considering this question whether she has been defamed.’

    In Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443, at 447:

    This imputation does not assert any moral blame for the exposure upon the plaintiff himself. It is well accepted law that, to be defamatory of a person, the imputation conveyed concerning him need not assert blame if it nevertheless tends to make other persons shun or avoid the plaintiff — for example, by attributing to him that he is insane: Morgan v Lingen (1863) 8 LT 800; or by attributing to her that she has been raped: Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 587.

     

    III.   Hatred, Contempt, or Ridicule

     

    An imputation may be defamatory if it exposes the plaintiff the ‘hatred, contempt, or ridicule.’

    In Parmiter v Coupland and Another (1840) 151 ER 340, 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.’

    Park B. stated that 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.’ He reasoned, ‘…any imputation of wicked or corrupt motives is unquestionably libellous; and such appears to be the nature of the publication here.’

     

    The principles for 'hatred, contempt' or ridicule' include:

     

    1. THE PHRASE ‘CALCULATED TO INJURE’ MEANS OBJECTIVELY ‘OBJECTIVELY LIKELY’ TO INJURE, NOT ‘SUBJECTIVELY INTENDED’ TO INJURE

     

    The phrase ‘calculated to injure’ means objectively ‘objectively likely’ to injure, not ‘subjectively intended’ to injure. In Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443, Hunt J stated, ‘The phrase is calculated to injure used by Parke B should be understood in the sense of has the effect of injuring.’ This was restated in Carrier v Bonham [2001] QCA 234 at [25]:

    To my mind, however, the problem is that the expression “calculated” which is used in those passages is one of those weasel words that is capable of meaning either subjectively contemplated and intended, or objectively likely to happen. … The implication I draw from the context in which the word appears in the passages quoted is that it was being used in the latter and not the former sense.

    This was also restated in Y and Z v W [2007] NSWCA 329 at [22]:

    “Calculated” in the test does not mean intended, since the intention of the publisher is immaterial and the imputation conveyed is determined objectively accordingly to the meaning which the ordinary reasonable person would give to the publication.

     

    2. IT IS NOT A REQUIREMENT THAT THE PLAINTIFF’S REPUTATION IS DAMAGED

     

    It is not a requirement that the plaintiff’s reputation is damaged.[4]

     

    3. WHILE THE ‘HATRED CONTEMPT OR RIDICULE’ TEST HAS BEEN CRITICISED, THE TEST IS STILL WORKING AND IN OPERATION

     

    While the ‘hatred contempt or ridicule’ test has been criticised, the test is still working and in operation. In Tournier V. National Provincial and Union Bank of England [1924] 1 KB 461 at 477:

    On this the judge had directed them that defamatory words were words tending to expose the plaintiff to “hatred, ridicule, and contempt” in the mind of a reasonable man. I do not myself think this ancient formula is sufficient in all cases, for words may damage the reputation of a man as a business man, which no one would connect with hatred, ridicule, or contempt. –

    This was restated in Sim v Stretch [1936] 2 All ER 1237 at 1240:

    Judges and textbook 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.

    And further restated by the High Court in Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [4]:

    An earlier test asked whether the words were likely to injure the reputation of a plaintiff by exposing him (or her) to hatred, contempt or ridicule but it had come to be considered as too narrow.

     

    III. A)   Ridicule

     

    An imputation may be defamatory if it is likely to cause the plaintiff to be ridiculed.

     

    The principles for ridicule include:

     

    1. THE PLAINTIFF MUST BE SUBJECTED TO ‘MORE THAN A TRIVIAL DEGREE OF RIDICULE’

     

    The plaintiff must be subjected to ‘more than a trivial degree of ridicule’. In Burton v. Crowell Pub. Co. 82 F.2d 154 (1936) at [1]:

    In conclusion therefore we hold that because the picture taken with the legends was calculated to expose the plaintiff to more than trivial ridicule, it was prima facie actionable…

    This was endorsed in Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443, at 448-9:

    Applying the principle discussed in Burton v Crowell Pub Co to the present case, 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.

    This point was affirmed in Hanson-Young v Bauer Media Ltd (No 2) [2013] NSWSC 2029 at [20]:

    The Court held that, because the advertisement was calculated to expose the plaintiff to more than trivial ridicule, it was prima facie actionable. The fact that it did not "assume to state a fact or an opinion" was irrelevant.

     

    2. IT IS IRRELEVANT WHETHER THE PLAINTIFF IS AT FAULT

     

    It is irrelevant whether the plaintiff is at fault. In Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449, at [17]:

    The defendant then submits that it is not capable of defaming the plaintiff to say that he appeared to be ridiculous, without any suggestion of fault on his part. The line of authority to which I have already referred above disposes of that submission.

    In Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443, at 447:

    This imputation does not assert any moral blame for the exposure upon the plaintiff himself. It is well accepted law that, to be defamatory of a person, the imputation conveyed concerning him need not assert blame if it nevertheless tends to make other persons shun or avoid the plaintiff — for example, by attributing to him that he is insane: Morgan v Lingen (1863) 8 LT 800; or by attributing to her that she has been raped: Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 587.

     

    EXAMPLES OF RIDICULE

     

    In Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449, the plaintiff was a professional rugby league player and a newspaper contained the heading, ‘BOYD IS FAT, SLOW AND PREDICTABLE’ and later described Boyd as ‘waddling’ on to the field. Or, in Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443, the plaintiff was photographed naked in the shower and the photo was published in a magazine. In McDonald v North Queensland Newspaper Company Ltd [1997] 1 Qd R 62, the plaintiff was a rugby league player and a newspaper published a photograph showing the plaintiff ‘passing the football while being tackled and, in each, part of his penis was visible outside the right leg of his shorts.’

     
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    General Principles

     

    The following principles apply to all three tests where appropriate:

     

    1. THE TESTS MUST BE VIEWED THROUGH THE LENS OF THE ORDINARY REASONABLE PERSON

     

    It is irrelevant what the defendant intended the matter to mean. The tests are objective and must be viewed through the lens of the ordinary reasonable person: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632, at [11].

     

    Other names for the ‘ordinary reasonable person’ are:
     

    • ‘Ordinary reasonable reader (listener or viewer)’: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165 per Hunt CJ at CL (with whom Mason P and Handley JA agreed);
       
    • ‘Hypothetical referee’: Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506.
       
    • ‘hypothetical audience’: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [6].
       
    • ‘ordinary decent folk’: Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 at 88 per Jordan CJ; Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 at 452 per Hunt J; John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28 at [53] per Gummow and Hayne JJ.
       
    • 'fair minded reader’: Lewis v Daily Telegraph Ltd [1964] AC 234 at 268 per Lord Morris.
       
    • ‘reasonable men’: Capital and Counties Bank v. Henty (1882) LR 7 App Cas 741, at p 745.
       
    • ‘ordinary men not avid for scandal’: Lewis v Daily Telegraph Ltd [1964] AC 234 at 260.
       
    • ‘ordinary good and worthy subject of the King.’: Byrne v Deane [1937] 1 KB 818 at 833.
       
    • ‘standard’.[5]
       
    • ‘yardstick’.[6]
       
    • Note, ‘right thinking members of society generally’ found in Sim v Stretch [1936] 2 All ER 1237 at 1240 per Lord Atkin has been rejected in Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16:

    [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."
     

    • Note, in the book Defamation Law by David Rolph, he states, ‘Whether all these characterisations remain relevant … is open to question.’[7]

     

    The Qualities of the Ordinary Reasonable Person:
     

    • The ordinary reasonable person ‘does not live in an ivory tower’: Lewis v Daily Telegraph Ltd [1964] AC 234 at 258 and affirmed in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 at [10] and affirmed in Farquhar v Bottom [1980] 2 NSWLR 380 at 386.
       
    • The ordinary reasonable person ‘is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs.’: Lewis v Daily Telegraph Ltd [1964] AC 234 at 258 and affirmed in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 at [10] and affirmed in Farquhar v Bottom [1980] 2 NSWLR 380 at 386. Restated in Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [6], ‘They are expected to bring to the matter in question their general knowledge and experience of worldly affairs.’
       
    • The ordinary reasonable person ‘is a layman not a lawyer and … his capacity for implication is much greater than that of a lawyer.’: Farquhar v Bottom [1980] 2 NSWLR 380 at 386.
       
    • The ordinary reasonable person is not ‘avid for scandal.’: Lewis v Daily Telegraph Ltd [1964] AC 234 at 258. Affirmed in Farquhar v Bottom [1980] 2 NSWLR 380 at 368, John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 at [26], and in Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [6].
       
    • The ordinary reasonable person does not have background knowledge of the situation. In Haddon v Forsyth [2011] NSWSC 123, Simpson J stated:

    [17] In the circumstances of the present case, the exercise has a degree of artificiality. As will become apparent from what I write below, the emails in this case were published to an extraordinarily limited number of recipients, each of whom had a close association with the environment in which they were published, and in which the events with which they were concerned took place. Most, if not all, had at least some prior knowledge of the relevant facts and circumstances. It might, therefore, be expected that they would read the emails differently from the “ordinary reasonable reader” or “hypothetical referee” who did not have that inside knowledge.

    [18] However, the law is plain, and my duty is to approach the determination of whether or not any imputation pleaded was conveyed by reference to the “ordinary reasonable reader” or the “hypothetical referee”, as though the email had been picked up off the street by a casual passer by…
     

    • The ordinary reasonable person does not have ‘special knowledge’: Chakravarti v Advertiser Newspapers Limited [1998] HCA 37 at [134].
       
    • The ordinary reasonable person is not ‘morbid’: Farquhar v Bottom [1980] 2 NSWLR 380 at 368; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165.
       
    • The ordinary reasonable reader is not ‘suspicious of mind’: Farquhar v Bottom [1980] 2 NSWLR 380 at 368; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, at 165. In Chakravarti v Advertiser Newspapers Limited [1998] HCA 37 at [134], the ordinary reasonable person does not have views of extreme ‘suspicion’.
       
    • The ordinary reasonable person does not have views of extreme ‘cynicism (on the one hand) or naivety and disbelief (on the other).’: Chakravarti v Advertiser Newspapers Limited [1998] HCA 37 at [134].
       
    • The ordinary reasonable person is not ‘perverse’: Farquhar v Bottom [1980] 2 NSWLR 380 at 368; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, at 165.
       
    • ‘In my view [the ordinary reasonable person has a] general knowledge of the ways of people and the world against which the words must be construed.’: Cornes v the Ten Group Pty Ltd and Ors [2012] SASCFC 99 at [52] (Kourakis CJ).
       
    • ‘[O]rdinary reasonable people’ may be ‘described as "of ordinary intelligence, experience, and education" [(Spencer Bower, A Code of the Law of Actionable Defamation, 2nd ed (1923) at 37)]’: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [6], French CJ, Gummow, Kiefel and Bell JJ. In Slatyer v The Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 at 7, the reasonable person was described as having ‘fair average intelligence’ and affirmed in Farquhar v Bottom [1980] 2 NSWLR 380 at 368. In Lewis v Daily Telegraph Ltd [1964] AC 234 at 286 per Lord Devlin as ‘ordinary sensible man’.
       
    • The ordinary reasonable person is ‘fair-minded’: Lewis v Daily Telegraph Ltd [1964] AC 234 at 268. This was affirmed in Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [6].
       
    • The ordinary reasonable person is ‘taken to have a uniform view of the meaning of the language used’: Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at [7].
       
    • The ordinary reasonable person is ‘taken to have a uniform view of … moral or social’ standards: Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at [7].
       
    • The ordinary reasonable person strikes a balance between extreme views: In Lewis v Daily Telegraph Ltd [1964] AC 234 at 259:

    Ordinary men and women have different temperaments and outlooks. Some are unusually suspicious and some are unusually naive. One must try to envisage people between these two extremes and see what is the most damaging meaning they would put on the words in question.

    • The more sensational the matter, the less analytical care the ordinary reasonable person will take. In Amalgamated Television Services v Marsden (1998) 43 NSWLR 158, at 12:

    The reader of a book, for example, is assumed to read it with more care than he or she would read a newspaper. The more sensational the article in a newspaper, the less likely is it that the ordinary reasonable reader will have read it with the degree of analytical care which may otherwise have been given to a book, and the less the degree of accuracy which would be expected by the reader. The ordinary reasonable reader of such an article is understandably prone to engage in a certain amount of loose thinking. There is a wide degree of latitude given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual.

    …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.
     

    Kirby J explains the rationale for the ordinary reasonable person in Chakravarti v Advertiser Newspapers Limited [1998] HCA 37 at [134]:

    In practice, the tribunal of fact, judge or jury, will ask itself about its own response to the matter complained of. To a very large extent that response will be impressionistic, subjective and individual to the decision-maker. The point of the invocation of the hypothetical reasonable person is to remind decision-makers that they may, or may not, reflect the response of the average recipient of the communication and should make allowance for that possibility.

     

    2. THE ORDINARY REASONABLE PERSON TAKES THE VIEWS OF THE GENERAL COMMUNITY, NOT SECTIONS OF THE COMMUNITY

     

    The ordinary reasonable person takes the views of the general community, not sections of the community. In Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506:

    Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation … being a standard common to society generally …

    The defamatory nature of an imputation is ascertained by reference to general community standards, not by reference to sectional attitudes.

    This was restated in Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [6]), ‘…any standards to be applied by the hypothetical referees, to an assessment of the effect of imputations, are those of the general community.’

     

    3. THE ‘GENERAL COMMUNITY’ DOES NOT MEAN ALL OF THE COMMUNITY. AN ‘APPRECIABLE AND REPUTABLE SECTION OF THE COMMUNITY’ IS SUFFICIENT.

     

    The ‘general community’ does not mean all of the community. An ‘appreciable and reputable section of the community’ is sufficient. In Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682, Hutley JA argued at 686 that someone who terminate pregnancies (plaintiff) may be seen as immoral by a substantial section of the community which can result in hatred, ridicule or contempt, but another section of the community may not see the plaintiff as immoral. Hutley found it ‘startling’ that an imputation accusing the plaintiff to be an abortionist could not be defamatory. Glass JA affirmed the view and stated at 694:

    [A] man can justly complain that words, which lower him in the estimation of an appreciable and reputable section of the community, were published to members of it, even though those same words might exalt him to the level of a hero in other quarters. Where a television programme has been beamed to a large audience it can be presumed, without special proof, that its viewers will include some who advocate the “right to life” and abhor the destruction of foetuses, whatever the circumstances. In the estimation of such persons the plaintiff can claim to have been disparaged even if abortionist meant lawful abortionist.

    Some further support is found in Grundmann v Georgeson [1996] QCA 189 by McPherson J.A. at [2] referring to differing community views on abortion:

    And it could not be said that those who thought that were not a substantial, intelligent and reasonable section of the community. That is sufficient, in my view to make the publication defamatory.

    Note that the phrase ‘appreciable and reputable section of the community’ probably does not mean a small minority. The textbook Fleming’s The Law of Torts writes:

    On the other hand, it is not sufficient that the words are regarded as prejudicial by only a small minority who’s standards are so anti-social that it would not be proper for courts to recognise them.[8]

    Additionally, David Rolph in his book Defamation Law warns that the phrase ‘appreciable and reputable section of the community’ is ‘…an approach more usually adopted in United Stated defamation law. It is not an approach which has received widespread support within Australian defamation law.’[9]

     

    4. MUST TAKE INTO ACCOUNT CURRENT SOCIAL TRENDS

     

    Must take into account current social trends. In John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 at [140]:

    In most circumstances, it ought not to be the case in Australia that to publish a statement that one adult was involved in consenting, private homosexual activity with another adult involves a defamatory imputation. But whether it does or does not harm a person's reputation to publish such an imputation is related to time, personality and circumstance. Once, it was highly defamatory in many countries to allege, or suggest, that a person was a communist. Now, in most circumstances, it would be a matter of complete indifference. The day may come when, to accuse an adult of consenting homosexual activity is likewise generally a matter of indifference. However, it would ignore the reality of contemporary Australian society to say that that day has arrived for all purposes and all people. At least for people who treat their sexuality as private or secret, or people who have presented themselves as having a different sexual orientation, such an imputation could, depending on the circumstances, still sometimes be defamatory.

     

    Some examples of changed societal trends include:

    • The imputation of being a communist: In Cross v Denley (1952) 52 SR (NSW) 112, ‘Some of the plaintiff’s customers who read the newspaper item … not unreasonably form the conclusion that the plaintiff … was a man who sympathised with the aims of the Communist Party.’ However, in John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 at [140], ‘Once, it was highly defamatory in many countries to allege, or suggest, that a person was a communist. Now, in most circumstances, it would be a matter of complete indifference.’
       
    • The imputation of being an adulterer: In Clark v Vare [1930] NZLR 430 and Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331, imputations of adultery was held to be defamatory. However, in Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708, Hutley JA states at 710:

    The imputation of an improper adulterous relationship would be harder to justify as not being defamatory, but the reputations of Anthony and Cleopatra have not been lowered in the eyes of the public by their romance, and in other days, the title of the King's Mistress was one of honour. Despite Rofe QC's confident assertion that the imputation of adultery must lower the two appellants in the public esteem, even in these days in which fault has been officially expelled from the law of domestic relations, passions between the powerful and glamorous may have a quality which transcends middle- class morality. The expulsion of the concept of fault in domestic relations means that as far as the State is concerned anything goes.

    • The imputation of being a homosexual: The imputation of homosexuality in recent history has been capable of being defamatory. For example, in John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 at [140]:

    At least for people who treat their sexuality as private or secret, or people who have presented themselves as having a different sexual orientation, such an imputation could, depending on the circumstances, still sometimes be defamatory.

    However, in Tassone V Kirkham [2014] SADC 134 at [35] Judge Cole held:

    The email clearly conveys that the plaintiff was homosexual. I do not consider, in the context of this case, that that aspect of the meaning of the email is, by itself, defamatory in the general community of contemporary South Australia, or among the recipients of the email.

     

    5. THE TESTS DO NOT REQUIRE THAT THE EFFECT OF THE TEST HAS ACTUALLY OCCURRED. 
     

    The tests do not require that the effect of the test has actually occurred. For example, the test that a person’s reputations must be diminished in their community, does not actually have to be diminished. Instead, it’s whether the effect of the test has the ‘tendency or likelihood’ of it occurring: Thornton [2010] EWHC 1414 (QB) at [93] per Tugendhat J. For further support, in Sim v Stretch [1936] 2 All ER 1237 at 1240 per Lord Atkin used the word ‘tend’ and in Parmiter v Coupland (1840) 6 M&W 105 at 342 per Parke B said whether the publication ‘would be likely to produce that effect’.

     

    6. IT IS NOT REQUIRED TO PROVE THAT THE IMPUTATION IS UNTRUE

     

    It is not required to prove that the imputation is untrue. In Age Company Ltd v Elliott [2006] VSCA 168, per Buchannan JA with whom Chernov and Ashley JJA agreed:

    [14] It is well established at common law that a plaintiff in a defamation suit is not required to plead or prove that the imputations of which he complains are false.

    [15] … As falsity is not an element of the cause of action, no presumption of falsity can arise from the failure of the defendant to plead truth. The existence of the presumption has been accepted in common law jurisdictions for so long that it may now be too late to correct the error from which it arose.

     

    7. THE PLAINTIFF DOES NOT HAVE TO SHOW THAT THE DEFENDANT INTENDED THE MATTER TO BE DEFAMATORY

     

    The plaintiff does not have to show that the defendant intended the matter to be defamatory. The intention of the publisher is irrelevant. In Hulton (E) & Co v Jones [1910] AC 20, HL:

    23. … The statement of the writer with respect to his own intention is irrelevant …

    24. … A person charged with libel cannot defend himself by shewing that he intended in his own breast not to defame, or that he intended not to defame the plaintiff, if in fact he did both … If the intention of the writer be immaterial in considering whether the matter written is defamatory, I do not see why it need be relevant in considering whether it is defamatory of the plaintiff.

    This was restated in Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 173 (Diplock LJ):

    …the meaning intended to be conveyed by the publisher of the words is irrelevant. However evil the imputation upon the plaintiff's character or conduct he intended to communicate, it does not matter if, in the opinion of the adjudicator upon the meaning of the words, they did not bear any defamatory meaning. However innocent an impression of the plaintiff's character or conduct the publisher of the words intended to communicate, it does not matter if, in the opinion of the adjudicator upon the meaning of words, they did bear a defamatory meaning: Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 173 (Diplock LJ)

    Further restated in Berkoff v Burchill [1996] 4 All ER 1008 at 151:

    It is trite law that the meaning of words in a libel action is determined by the reaction of the ordinary reader and not by the intention of the publisher, but the perceived intention of the publisher may colour the meaning.

    And restated in  Chapman & Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 at [58], 'The intention of the publisher is irrelevant and so also is the meaning those to whom the words were published might give the words.' Finally, this was restated in Dow Jones & Company Inc v Gutnick [2002] HCA 56, at [25], ‘…a defendant may be liable even though no injury to reputation was intended…’

     

    8. AN IMPUTATION MAY BE DEFAMATORY UNDER MULTIPLE TESTS

     

    An imputation may be defamatory under multiple tests. For example, in Obermann v ACP Publishing Pty Limited [2001] NSWSC 1022, a low-grade pornographic magazine published a water polo player who’s breasts were exposed with sexual overtones. The matter qualified for both the ‘ridicule or contempt’ test and the ‘shunned or avoided’ test. It was held at [40]:

    The point is that to state of a person “the plaintiff is a person whose breasts were exposed to the readers of a pornographic magazine” arguably means nothing disparaging of the person whose breasts were so exposed. It is the context in which they were photographically exposed that gives rise to the defamatory sting namely, that the person is held up to ridicule or contempt and is likely thereby to be shunned and avoided.

     

    9. THE IMPUTATION MUST IDENTIFY THE ACT OR CONDITION ATTRIBUTED TO THE PLAINTIFF

     

    The imputation must identify the act or condition attributed to the plaintiff. In Hanson-Young v Bauer Media Limited [2013] NSWSC 1306, Zoo Magazine published an image of a member of the Greens Party where her head was photo-shopped onto a woman in her underwear. The defense submitted that the article and image was plainly a joke. The imputation was, ‘4B The plaintiff's pro-asylum seeker stance is ridiculous.’ McCallum J held:

    [34] The difficulty lies in formulating the imputations it conveys. I would accept that the imputation that the plaintiff is not a politician to be taken seriously is bad in form on the basis that it is rhetorical. It says, "this is what you should think of the plaintiff", not "this is what the plaintiff is". It amounts to an exhortation, not the attribution of an act or condition

    [40] The imputation attributes the condition of ridiculousness not to the plaintiff but to her stance on a political policy. It does not identify any act or condition attributed to her. In my view, imputation 4B should be struck out…

     

    9. A) THE ACTION OF CONDITION ATTRIBUTED TO THE PLAINTIFF IS FIRSTLY, A MATTER OF DEGREE, AND SECONDLY, THE DEGREE WILL BE DEPENDENT UPON THE FACTS AND CIRCUMSTANCES OF THE CASE.

     

    The requirement to identify the action of condition attributed to the plaintiff is firstly, a matter of degree, and secondly, the degree will be dependent upon the facts and circumstances of the case. In Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 2:

    The requirement that a plaintiff must "specify" the act or condition which he claims was attributed to him, that is to say, the statement which he says was made about him, which follows from the scheme of the Defamation Act, the provisions of the Rules of Court, and the ordinary rules of pleading, is one which, in its practical application, raises questions of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology. In John Fairfax and Sons Ltd v Foord (1988) 12 NSWLR 706 this Court approved of Hunt J's leaving to the jury an imputation that the plaintiff was a criminal associate of drug dealers. No one suggested that it was necessary to identify with particularity the crime or crimes alleged to have been committed by the plaintiff, even though it is always theoretically possible to be more specific about an allegation that a person is a criminal.

    Furthermore, whilst the principles relevant to the plaintiff's obligation remain constant their practical application may depend upon the facts and circumstances of the given case, and the relevant circumstances may include the manner in which the defendant, or the author of the defamatory matter, has expressed the defamatory matter. Defamation may come in the form of snide insinuation or robust denunciation, or something in between those two extremes. The attribution to a person of an act or condition may be done with a high degree of particularity or it may take the form of the most generalised and nonspecific abuse. It is a feature of certain forms of defamation that one can read or hear matter published concerning a person and be left with the powerful impression that the person is a scoundrel, but find it very difficult to discern exactly what it is that the person is said or suggested to have done wrong. The requirement upon a plaintiff cannot go beyond doing the best that can reasonably be done in the circumstances. If a defendant has posted in a public place a sign that simply says "X is disgusting", the degree of specificity with which it is appropriate to require X to formulate the defamatory imputation will need to be related to the nature and content of the defamatory matter.

    Beech-Jones J affirmed this principle n Kenny v Australian Broadcasting Corporation [2014] NSWSC 190:

    [49] ...consistent with the discussion in Drummoyne, in some cases such imputations will suffice if the alleged defamer has left the matter hanging. This is more likely to be so in the case of extreme ridicule where the defamer does not delve into the detail as to why the plaintiff should be depicted in a humiliating way, although the implication is that there is something about them or their conduct which means that they deserve it.

    [51] In a case such as this, imputation (c) does state something about Mr Kenny's conduct or condition and also provides the best particularisation that can reasonably be expected. The fact that further particulars cannot be provided flows from the very nature of the extreme ridicule involved. Consistent with Drummoyne, no further particularisation is required.

     

    10. AN IMPUTATION THAT ONLY CONTAINS THE CONSEQUENCE OF A DEFAMATORY MEANING INTO THE IMPUTATION ITSELF, MAY BE STRUCK-OUT

     

    An imputation that only contains the consequence of a defamatory meaning into the imputation itself, may be struck-out. To contrast, an imputation should contain the defamatory meaning, not purely the consequence of the defamatory meaning. I forewarn the reader that the following section is quite wordy and so I provided ample commentary.

     

    In Scali v John Fairfax Group Pty Ltd (Unreported, Supreme Court of NSW, Levine J, 15 April 1993), the Sydney Morning Herald published an article titled, ‘Gilt trip is over as Resort closes for $8 million facelift’. The plaintiff relied the following two imputations:

    (f) That the plaintiffs had so conducted themselves in their business that they should be shunned and avoided by persons seeking to purchase furniture.

    (g) That the first plaintiff has so conducted himself as to deserve to be held up to public ridicule.

    Levine J held:

    BC9304563 at 4: This immediately, in my view, creates difficulties for a pleader. What is involved is the formulation of the imputation in the "proper" way ascribing an act and condition and including in it the assertion as to the deserving of ridicule or of being shunned and avoided, which assertion of course incorporates the usual allegation as to the consequence of the publication of the defamatory imputation itself.

    BC9304563 at 5: I see no reason in principle why such incorporation would make any imputation defective provided the imputation otherwise is appropriate in form and of course is capable of arising. I have little reservation in holding that the article is capable of giving rise to imputations reflecting ridicule. Nonetheless it is argued that in relation to (f) and (g) the "conduct" as referred to in each (including (f) as amended) has not been identified as providing the basis for the plaintiff being shunned and avoided or being held up to public ridicule.

    Imputations (f) and (g) are struck out.
     

    Later, in Scali v John Fairfax Group Pty Ltd (Unreported, Supreme Court of NSW, Levine J, 15 July 1993), the plaintiffs amended the original imputations:

    BC9304564 at 2: The new imputations, imputations (d) and (e), are:

    (d) That the Plaintiffs, by reason of the First Plaintiff being a person lacking in good taste in respect to furniture and interior decorations, should be shunned and avoided by persons seeking to purchase furniture.

    (e) That the First Plaintiff, by reason of his lacking in good taste in respect to furniture and interior decorations, is deserving of being held up to public ridicule.
    ...
    BC9304564 at 4: For the plaintiff it is contended that some comfort can be found for the form of the pleaded additional imputations in the judgment I delivered on 15 April 1993. In that judgment I said that the article is capable "of giving rise to imputations reflecting ridicule". That is the view I then formed and is the view to which I adhere: I also indicated the difficulty for the pleader, if what I there said is correct, to formulate an imputation of ridicule as distinct from formulating an imputation which includes no more than, as is the case here, the pleading of a consequence of the publication of the defamatory imputation, namely that the plaintiff is deserving of being held up to ridicule.

    BC9304564 at 5: In summary, therefore, I am of the view that imputation (d) should be struck out by reason of its form.

    In Hanson-Young v Bauer Media Limited [2013] NSWSC 1306, McCallum J endorsed the Scali decision provided commentary at [18]-[19]:

    The burden of the decision (the 15 July decision), I think, is that the imputations were liable to be struck out because they were rhetorical, by reason of the inclusion of the exhortation that the plaintiff "should be shunned and avoided" and was "deserving of being held up to public ridicule". In each case, the rhetorical exhortation added nothing to a separate, non-contentious imputation (that the first plaintiff was a person lacking in good taste in respect to the quality and style of furniture and interior decorations he provides for buildings).

    … What emerges from the two Scali decisions is that an imputation which does no more than to appeal to rhetoric ("the plaintiff should be shunned and avoided" or "the plaintiff deserves to be held up to ridicule") is bad in form, since it achieves no more than to assert the consequence of publication of a defamatory imputation and, in so doing, fails to distil the act or condition allegedly attributed to the plaintiff by the matter complained of by reason of which his or her reputation has been damaged.

    This principle has also been affirmed in Kelly v John Fairfax Publications Pty Ltd [2003] NSWSC 586. In that case, a photograph of a man partly naked and strapped to a piano was incorrectly described in the Sun Herald as being a photograph of the plaintiff. Levine J stated:

    [20] Imputation (c) as presently framed is:

    4(c) the Plaintiff behaved in such a way as to deserve to be ridiculed by the Sun Herald newspaper.

    [21] In that form, it is fraught with problems because it falls within what I would describe, for present purposes, as the Scali area of difficulty in pleading ridicule (Nick Scali & Co Pty Ltd v John Fairfax Publications Pty Ltd, unreported, Levine J, 15 April 1993).

    [22] The plaintiff has, however, proposed a substitute imputation to this effect:

    The plaintiff, by reason of permitting himself to be photographed partly naked in Hyde Park with bonds, has justifiably exposed himself to the ridicule of the defendant.

    [23] Such an imputation, in my view, is proper in form, capable of arising and capable of being defamatory. I would otherwise strike out the presently pleaded imputation (c).

     

    11. HARMLESS JOKES DO NOT QUALIFY AS DEFAMATORY

     

    Harmless jokes do not qualify as defamatory. For example, in Coleman v John Fairfax Publications Pty Ltd [2003] NSWSC 564, the Herald Sun published the following:

    South Sydney's poor showing in the 2002 NRL season may be linked to coach Craig Coleman being put in child care as a toddler, according to a psychologist.

    Asked by Club officials to assess Coleman's performance this year, a psychologist concluded that the Souths' disappointing 5-19 record stems from "abandonment and attachment issues" Coleman harbours after spending 4 days every week in childcare between the ages of 2 and 5.

    In making his finding, the psychologist dismissed suggestions that Souths finished second last simply because they didn't have any decent players.

    "It's my belief that Craig's somewhat fractured relationship with his mother as a child hasn't provided him with adequate communication and intimacy skills", the psychologist said." He has grown up feeling abandoned and rejected and lacks the necessary confidence to make himself understood, which isn't something you want in a football coach". The psychologist said placing Coleman in childcare could explain big losses in rounds 19, 21, 22 and 23".

    Levine J held at [22]-[23]:

    I have come to the view, which I will state now, that this matter complained of is incapable of defaming either plaintiff in the way pleaded (or indeed, in my view, at all). My reason for so stating is that this could not, in my view, be a clearer case where the ordinary reasonable reader would understand from reading whole of the material that none of its contents was to be taken seriously. If a reader took the whole of this material, or any part of it, as a joke but nonetheless felt there was something "beyond a joke", in my view that reader would be neither ordinary nor reasonable.

    I have come to the view that this article itself, and the more so by reference to the surrounding material, is self-evidently absurd. The ordinary reasonable reader would understand that what was being published was to be understood only as an absurd joke. That reader, if ordinary and reasonable, simply could not draw from the matter complained of imputations of the kind pleaded here. No ordinary reasonable reader would understand this article to convey anything disparaging of the plaintiffs and thereby hold them up to hatred, ridicule or contempt, or by its mere publication, or any reference at best to psychological deficiencies or incidents of upbringing, to bring about them being shunned and avoided.

     

    11. A) A JOKE MAY STILL QUALIFY AS DEFAMATORY IF IT IS LIKELY TO SUBJECT THE PLAINTIFF TO RIDICULE

     

    A joke may still qualify as defamatory if it is likely to subject the plaintiff to ridicule. In Hanson-Young v Bauer Media Limited [2013] NSWSC 1306, Zoo Magazine published an image of a member of the Greens Party where her head was photo-shopped onto a woman in her underwear. The defense submitted that the article and image was plainly a joke. However, McCallum J stated:

    [33] In my view, although the matter complained of in the present case would plainly be understood as a joke of sorts, it cannot be concluded that the article is incapable of being defamatory of Senator Hanson-Young.

    [37] …in my view, that the matter complained of in the present case is plainly capable of being found to be defamatory of Senator Hanson-Young. In particular, in my view the article is capable of being understood as subjecting her, as an "entirely blameless plaintiff" to "more than a trivial degree of ridicule".

     

    12. VULGAR ABUSE OR INSULTING NAME CALLING DOES NOT AUTOMATICALLY QUALITY AS DEFAMATORY

     

    Vulgar abuse or insulting name calling does not automatically quality as defamatory. Vulgar abuse can in fact be defamatory, but it does not follow that it is always defamatory. The opposite is also true, that is, vulgar abuse does not mean that the matter was not defamatory. This principle was established in Mundey v Askin [1982] 2 NSWLR 586 at 371-372 and later restated in Bennette v Cohen [2005] NSWCA 341 at [48]-[51].

     

    13. IF THE PLAINTIFF BUILT THEIR REPUTATION THROUGH AN ILLEGAL ACTIVITY, THE COURT WILL NOT CONSIDER AN IMPUTATION WHICH HAS DAMAGED THEIR REPUTATION.

     

    If the plaintiff built their reputation through an illegal activity, the court will not consider an imputation which has damaged their reputation. ‘The rationale for this test is that the court will not assist a plaintiff seeking compensation for an illegal activity.’[10]

    In Kings Cross Whisper Pty Ltd v Ray (1970) 72 SR (NSW) 339, the defendants published an article in a newspaper which referred to the plaintiff quite harshly. They wrote:

    [Kings Cross Whisper are] purveyors of filth blatantly flouting their evil wares in the main street trying to corrupt teenagers and children.

    It is believes that some of those responsible for the publication are associated with Nazi activities in Australia.

    This filthy rag is the sort of thing one would expect to be purveyed in dark corners, and it is staggering that low creatures, using filth to apparently finance the activities of the discredited Nazi Party, should be so sure action would not be taken against them that they would peddle their filth so openly. Why are these evil monsters so sure of themselves? Apparently because this rag has been published for some time in Sydney quite immune from Government and police action.

    Like many pedlars before them, these sellers of filth have even had the utter cheek to say they have BIC approval. The BIC ban – with all such a ban implies – is the answer to that most false of claims. We do not in Broken Hill want Nazi Party propagandists; we do not want pedlars of pornography. Let us run these monsters out of this city!

    The alleged defamatory material was targeted towards a company which was illegal. The company was illegal because it was ‘publishing and distributing a news-sheet without being registered as a distributor of printed matter under s 21 of the Obscene and Indecent Publications Act, 1901.’  

    Moffitt J.A. held at 344:

    The relevant principles are dealt with in Smith’s Newspapers Limited. v. Becker (1932) 47 C.L.R. 279 and Wilkinson v. Sporting Life Publications Ltd. (1933) 49 C.L.R. 365. If a person carries on a trade, business, or calling illegality, then the law will not aid him in a defamation action to recover compensation is respect of damage to any reputation acquired in so carrying on such trade, business or calling. It is not a question of the defendant justifying the defamatory statement, but of the court declining its aid to the recovery of compensation for damage to a reputation acquired in an illegal pursuit. It is not sufficient, in order to defeat a claim for damages, merely to show that the defamatory statements which were published concerned or referred to an illegal pursuit, for such statements are actionable if they reflect upon and damage a plaintiff’s reputation in respects other than in relation to the illegal pursuit.

     
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    Summary Checklist

     

    The three separate tests for whether an imputation is defamatory are:

    I. General Test

    1. The imputation must damage the plaintiffs reputation.

    2. To determine whether the plaintiff’s reputation has been damaged, the imputation must likely cause people to think less of the plaintiff.

    I. A) Business/Professional Reputation

    1. The same general test applies to a person’s personal reputation, a person’s business reputation, or a person’s professional reputation.

    2. If the imputation is in relation to a person’s business, the imputation must involve ‘some reflection upon his personal character or upon the mode in which he carries on his business, his business reputation.’

    3. Reputational damage to a person’s business or goods does not qualify for defamation. Damage to a person’s business reputation does qualify for defamation.

    4. A defamatory imputation does not require an imputation of moral fault or defect in personal character.

    II. Shunned or avoided

    1. Shunned or avoided: Another test for whether the imputation is defamatory is if the imputation causes others to shun or avoid the plaintiff.

    2. It is not necessary for the plaintiff’s reputation to be damaged.

    3. It is irrelevant whether the plaintiff is at fault or whether the plaintiff is immoral.

    III. Hatred Contempt or Ridicule

    1. An imputation may be defamatory if it exposes the plaintiff the ‘hatred, contempt, or ridicule.’

    2. It is not a requirement that the plaintiff’s reputation is damaged.

    III. A) Ridicule

    1. For ridicule, the plaintiff must be subjected to ‘more than a trivial degree of ridicule’.

    2. It is irrelevant whether the plaintiff is at fault.

    General Principles

    The following principles apply to all three tests where appropriate:

    1. The imputation must be viewed through the lens of the ordinary reasonable person.

    2. The ordinary reasonable person takes the views of the general community, not sections of the community.

    2. A) The ‘general community’ does not mean all of the community.

    3. Must take into account current social trends.

    4. An imputation may be defamatory under multiple tests.

    5. The imputation must identify the act or condition attributed to the plaintiff.

    6. An imputation that only contains the consequence of a defamatory meaning into the imputation itself, may be struck-out. To contrast, an imputation should contain the defamatory meaning, not purely the consequence of the defamatory meaning.

    7. Harmless jokes do not qualify as defamatory.

     7. A) A joke may still qualify as defamatory if it is likely to subject the plaintiff to ridicule.

    8. Vulgar abuse or insulting name calling does not automatically quality as defamatory. Vulgar abuse can in fact be defamatory, but it does not follow that it is always defamatory. The opposite is also true, that is, vulgar abuse does not mean that the matter was not defamatory.

    9. If the plaintiff built their reputation through an illegal activity, the court will not consider an imputation which has damaged their reputation.

     
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    Bibliography

     

    Books

     

    1. Balkin, R P and J L R Davis, Law of Torts (LexisNexis Butterworths, 5th Edition, 2013)
       
    2. Collins, Matthew, Collins on Defamation (Oxford University Press, 2014)
       
    3. Davies, Martin and Ian Malkin, Focus: Torts (LexisNexis Butterworths, 7th Edition, 2015)
       
    4. Hitchens, Lesley, Media Law in Australia (Wolters Kluwer: Law & Business, 2014)
       
    5. Mendelson, Danuta, The New Law of Torts (Oxford University Press, 3rd Edition, 2014)
       
    6. Mendelson, Danuta, The New Law of Torts: Case Book (Oxford University Press, 3rd Edition, 2014)
       
    7. Rolph, David, Defamation Law (Thomson Reuters, 2016)
       
    8. Sappideen, Caroline and Prue Vines (eds), Fleming′s The Law of Torts (Thomson Reuters, 10th Edition, 2011)
       
    9. George, Patrick, Defamation Law in Australia (LexisNexis Butterworths, 2nd Edition, 2011)

     

    Journal articles

     

    1. Baker, Roy, ‘Defamation and the Moral Community’ (2008) 13 Deakin Law Review
       
    2. Gould, Kim, ‘The Common Law Tests of Defamatory Meaning in the Wake of Radio 2UE Sydney v Chesterton’ (2015) 41 Australian Bar Review

     

    cases

     

    1. Age Company Ltd v Elliott [2006] VSCA 168
       
    2. Alexander v Jenkins (1892) 1 QB 797
       
    3. Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
       
    4. Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225
       
    5. Bennette v Cohen [2005] NSWCA 341
       
    6. Berkoff v Burchill [1996] 4 All ER 1008
       
    7. Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449
       
    8. Burton v Crowell Pub Co 82 F 2d 154 (1936)
       
    9. Byrne v Deane [1937] 1 KB 818
       
    10. Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708
       
    11. Capital and Counties Bank v Henty (1882) LR 7 App Cas 741
       
    12. Carrier v Bonham [2001] QCA 234
       
    13. Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331
       
    14. Chakravarti v Advertiser Newspapers Limited [1998] HCA 37
       
    15. Chapman & Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181
       
    16. Charlwood Industries Pty Ltd v Brent [2002] NSWCA 201
       
    17. Clark v Vare [1930] NZLR 430
       
    18. Coleman v John Fairfax Publications Pty Ltd [2003] NSWSC 564
       
    19. Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86
       
    20. Cornes v the Ten Group Pty Ltd and Ors [2012] SASCFC 99
       
    21. Cross v Denley (1952) 52 SR (NSW) 112
       
    22. Dow Jones & Company Inc v Gutnick [2002] HCA 56
       
    23. Drummond-Jackson v British Medical Association [1970] 1 WLR 688
       
    24. Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
       
    25. Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443
       
    26. Farquhar v Bottom [1980] 2 NSWLR 380
       
    27. Favell v Queensland Newspapers Pty Ltd [2005] HCA 52
       
    28. Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR(NSW) 171
       
    29. Grundmann v Georgeson [1996] QCA 189
       
    30. Haddon v Forsyth [2011] NSWSC 123
       
    31. Hanson-Young v Bauer Media Ltd (No 2) [2013] NSWSC 2029
       
    32. Henry v TVW Enterprises Ltd (1990) 3 WAR 474
       
    33. Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682
       
    34. Hulton (E) & Co v Jones [1910] AC 20, HL
       
    35. John Fairfax and Sons Ltd v Foord (1988) 12 NSWLR 706
       
    36. John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28
       
    37. John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50
       
    38. John Fairfax v Punch (1980) 31 ALR 624
       
    39. Kelly v John Fairfax Publications Pty Ltd [2003] NSWSC 586
       
    40. Kenny v Australian Broadcasting Corporation [2014] NSWSC 190
       
    41. Kings Cross Whisper Pty Ltd v Ray (1970) 72 SR (NSW) 339
       
    42. Lewis v Daily Telegraph Ltd [1964] AC 234
       
    43. McDonald v North Queensland Newspaper Company Ltd [1997] 1 Qd R 62
       
    44. Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632
       
    45. Mirror Newspapers v Jools [1985] FCA 181
       
    46. Morgan v Lingen (1863) 8 LT 800
       
    47. Mularczyk v John Fairfax Publications Pty Ltd [2001] NSWCA 467
       
    48. Obermann v ACP Publishing Pty Limited [2001] NSWSC 1022
       
    49. Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69
       
    50. Parmiter v Coupland and another (1840) 151 ER 340
       
    51. Potts v Moran (1976) 16 SASR 284
       
    52. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16
       
    53. Random House Australia Pty Ltd v Abbott [1999] FCA 1538
       
    54. Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500
       
    55. Rogers v Nationwide News Pty Limited [2003] HCA 52
       
    56. Scali v John Fairfax Group Pty Ltd (Unreported, Supreme Court of NSW, Levine J, 15 April 1993)
       
    57. Scali v John Fairfax Group Pty Ltd (Unreported, Supreme Court of NSW, Levine J, 15 July 1993)
       
    58. Sim v Stretch [1936] 2 All ER 1237
       
    59. Slatyer v Daily Telephraph Co Ltd (1908) 6 CLR 1
       
    60. Smith’s Newspapers Limited v Becker (1932) 47 CLR 279
       
    61. South Hetton Coal Co Ltd v North‑Eastern News Association Ltd [1894] 1 QB 133
       
    62. Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1
       
    63. Tassone v Kirkham [2014] SADC 134
       
    64. Thornton [2010] EWHC 1414 (QB)
       
    65. Tournier v National Provincial and Union Bank of England [1924] 1 KB 461
       
    66. Villers v Monsley (1769) 2 Wils 403
       
    67. Wilkinson v Sporting Life Publications Ltd (1933) 49 CLR 365
       
    68. Y and Z v W [2007] NSWCA 329
       
    69. Youssoupoff v MGM Pictures Ltd (1934) 50 TLR 581
       
    70. Zbyszko v New York American Inc (1930) 239 NYS 411
     
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    Endnotes

    [1] David Rolph, Defamation Law (Thomson Reuters, 2016) 6.220.

    [2] The following phrases are different expressions of the one point:

    • ‘It is disparagement of reputation which is the essence of an action for defamation.’: In Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [32].
       
    • ‘[Damage is] the gist of an actionable imputation.’ Dow Jones & Company Inc v Gutnick [2002] HCA 56 at [3].
       
    • ‘[I]t is defamation's concern with reputation, and the significance to be given to damage (as being of the gist of the action)...’: Dow Jones & Company Inc v Gutnick [2002] HCA 56 at [42].
       
    • ‘The essence of the action in defamation was that the publication of defamatory matter operated as a disparagement of the plaintiff's reputation’: Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at [11].
       
    • ‘At common law, in general, an imputation, to be defamatory of the plaintiff, must be disparaging of him.’: Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 at [11].

    [2] I give credit for compiling this list to Kim Gould, 'The Common Law Tests of Defamatory Meaning in the Wake of Radio 2UE Sydney v Chesterton' (2015) 41 Australian Bar Review at footnote 261.

    [3] Matthew Collins, Collins on Defamation (Oxford University Press, 2014) [6.18].

    [4] The following phrases are different expressions of the one point:

    • ‘…[whether the publication would] tend to lower the plaintiff in the estimation of right-thinking members of society generally.’: Sim v Stretch [1936] 2 All ER 1237 at 1240. However, the words ‘right-thinking’ have been criticised on several occasions. In Slatyer v Daily Telephraph Co Ltd (1908) 6 CLR 1 at 7:

    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.

    And in Potts v Moran (1976) 16 SASR 284 at 303:

    I prefer to make the criterion the estimation of the reasonable man rather than the right thinking man, a phrase which, to my mind, involves questionbegging assumptions and circuity of reasoning. It is hard to feel much confidence in a conclusion drawn from a conflation of the two propositions, “This conduct is wrong because right thinking persons condemn it” and “Right thinking persons condemn this conduct because it is wrong”.

    Finally, in Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [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.

    • ‘…[whether the publication] is likely to cause ordinary decent folk in the community, taken in general, to think the less of [the plaintiff].’: Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR(NSW) 171 at 172 per Jordan CJ.
       
    • ‘[The publication is] of a kind that is likely to lead ordinary decent folk to think less of the person about whom it is made.’: Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 at 88.
       
    • ‘…a statement about the plaintiff of a kind likely to lead the recipient as an ordinary person to think the less of him.’: Mirror Newspapers Ltd. V. World Hosts Pty. Ltd. (1979) 141 CLR 632 at [11].
       
    • ‘To be defamatory of the plaintiff, the imputation relied upon must be such as is likely to cause ordinary decent folk in the community, taken in general, to think the less of him.’: Boyd v Mirror Newspapers [1980] 2 NSWLR 449 at 452 (per Hunt J).
       
    • ‘So far as is relevant to the matter now under consideration, the legal issue which had to be decided was whether the material complained of was defamatory of the plaintiff in the sense that it was to his "discredit ... [tended] to lower him in the estimation of others [(Gatley on Libel and Slander, 8th ed (1981) par 31)].’: Chakravarti v Advertiser Newspapers Limited [1998] HCA 37 at [57].
       
    • ‘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.’: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [3].
       
    • ‘…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.’: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [36].

    [4] David Rolph, Defamation Law (Thomson Reuters, 2016) 6.240.

    [5] Kim Gould, 'The Common Law Tests of Defamatory Meaning in the Wake of Radio 2UE Sydney v Chesterton' (2015) 41 Australian Bar Review 50.

    [5] In Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [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.

    [6] For more cases, see Pratten v Daily Labour [1926] VLR 115; Potts v Moran (1976) 16 SASR 284 (politician) ; Fairfax v Punch (1980) 31 ALR 624 (politician); Baric v Doherty [1987] Aust Torts Reports 80-135 (solicitor); Queensland Newspapers v Palmer [2011] QCA 286; Pratten v Daily Labour Ltd [1926] VLR 115 (politician); Random House Australia v Abbott (1999) 94 FCR 296 (politician); Brander v Ryan (2000) 78 SASR 234 (politician); Steiner Wilson & Webster Pry Ltd v Amalgamated Television Services Pry Ltd (2000) Aust Torts Reports 81-537 (ACTSC) (business); Shepheard v Whitaker (1875) LR 10 CP 502 (business); Aspro Travel Ltd v Owners Abroad Group plc [1995] 4 All ER 728 (CA) (business); Coyne v Citizen Finance Ltd (1991) 172 CLR 211 (business); Hewitt v Queensland Newspapers Pry Ltd (SC(ACT), Higgins J, 5 June 1995, unreported) (business); Ratcliffe v Evans [1892] 2 QB 524 (CA) (business).

    [6] Kim Gould, 'The Common Law Tests of Defamatory Meaning in the Wake of Radio 2UE Sydney v Chesterton' (2015) 41 Australian Bar Review 50.

    [7] In Mularczyk v John Fairfax Publications Pty Ltd [2001] NSWCA 467 at [34], it was held:

    The imputation of dishonesty alleged was the absence of a quality which, I consider, must be taken as being an essential attribute of a teacher in the proper performance and discharge of his or her professional duties. To be said to be dishonest directly reflects on both the personal and professional character and qualities of persons in the position of the appellants. To return to the submission put by counsel for the appellants, the imputation could admit of only one answer, namely that it was defamatory.

    This was endorsed in Charlwood Industries Pty Ltd v Brent [2002] NSWCA 201 at [19]:

    Ordinarily, the imputation that a person has lied or is guilty of dishonest behaviour will be regarded as defamatory. This inference will be even more readily drawn if the imputation is that the person lied or was dishonest in the course of his or her business.

    [7] David Rolph, Defamation Law (Thomson Reuters, 2016) 6.80.

    [8] Caroline Sappideen and Prue Vines (eds), Fleming′s The Law of Torts (Thomson Reuters, 10th Edition, 2011) 25.20

    [9] David Rolph, Defamation Law (Thomson Reuters, 2016) 6.290.

    [10] Amanda Stickley, Australian Torts Law (LexisNexis Butterworths, 4th Edition, 2016) 22.44.

     

     
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