Defamatory matter Relevant Test:
The High Court of Australia has preferred a test of whether the published matter would be likely to lead others to think less of the plaintiff, which has also been expressed as whether it has the tendency to lower the plaintiff in the estimation of others (Radio 2UE Pty Ltd v Chesterton, 2009).
• Test requires a standard against which to be measured: a television show imputing that a person was a drug dealer would presumably not lead other drug dealers to think less of him or her, or lower him or her in their estimation
• Relevant standard to be applied is the standard of the hypothetical referee, namely ‘ordinary, reasonable people’ (Radio 2UE Pty Ltd v Chesterton, 2009).
• Disparagement is the essence of defamation (Radio 2UE Pty Ltd v Chesterton, 2009).
• . The publication must also disparage the plaintiff, in the sense of imputing moral blame (Sungravure Pty Ltd v Middle East Airlines Airliban SAL, 1975).
o E.g. When a newspaper published a report of a rugby league player who had returned to the game following injury and stated that he had waddled onto the field and was too fat and slow to play, the imputation was held to not be defamatory because it did not impute moral blame to him for being in that condition (Boyd v Mirror Newspapers Ltd, 1980).
• Published matter will not be regarded as being defamatory if it merely embarrasses or hurts the plaintiff’s feelings, it must damage the plaintiff’s reputation in the eyes of ordinary, reasonable members of the community (Boyd v Mirror Newspapers Ltd, 1980).
• Despite the preference for the ‘think less of the plaintiff/lower in estimation’ test, it seems that
‘being held up to ridicule’ may still serve as a basis for claiming that published matter is defamatory.
o E.g. men’s magazine Zoo Weekly had defamed a prominent Senator by ridiculing her when it photoshopped her head onto the body of a lingerie model over the political response to asylum seekers (Hanson-Young v Bauer Media Ltd (No 2), 2013)—particular significance for entertainment in the form of satire or parody
• Vulgar abuse is not regarded as defamatory because it is not likely to lead ordinary, reasonable to think less of the plaintiff or lower the plaintiff in the estimation of such people (Mundey v Askin, 1982; Wood v Branson, 1952; Gwynne v Wairapa Times-Age, 1972).
• Amalgamated Television Services Pty Ltd v Marsden (Hunt CJ at CL; Mason P and Handley JA agreeing)
o The ordinary meaning of the matter complained of may be either the literal meaning of the published matter, or what is implied by that matter, or what is inferred from it...In deciding whether any particular imputation is capable of being conveyed, the question is whether it is reasonably so capable
o …any strained or forced or utterly unreasonable interpretation must be rejected...The ordinary reasonable reader (or listener or viewer) is a person of fair average
intelligence..., who is neither perverse..., nor morbid or suspicious of mind..., nor avid for scandal...That person does not live in an ivory tower but can and does read between the lines in the light of that person's general knowledge and experience of worldly affairs...
• When determining this question, regard may be had to current social mores and standards o Krahe v TCN Channel Nine Pty Ltd (1986)
Context:
When applying the test for defamatory matter, it is necessary to take into account the context in which words or materials were used. A plaintiff is therefore unable to complain about an isolated part of a publication if other parts throw a different light on the manner.
• Attempting to provide an antidote to any bane is the reason why film and television drama productions often include a disclaimer that the production is a ‘work of fiction’ and that ‘any resemblance to actual events or persons, living or dead, is entirely coincidental’.
Identification
The second element of the cause of action is that the statement must be reasonably referable to the plaintiff (Lee v Wilson, 1934). This will be clearly the case if a production identifies the plaintiff by name (Barbaro v Amalgamated Television Services Pty Ltd, 1985) or image (such as video, picture or cartoon), but will also include where a plaintiff is able to be identified from what is said or shown to an ordinary, reasonable person (Morgan v Odhams Press Ltd, 1971).
• It will be sufficient if such a recipient reasonably understands the material to be referring to the plaintiff because of the recipient’s knowledge of extrinsic facts (Knupffer v London Express Newspaper Limited, 1944; Cassidy v Daily Mirror Newspapers Ltd, 1929; Steele v Mirror Newspapers Ltd, 1974).
• Where in the course of a production a statement is made that refers to a group e.g. in which a character describes all lawyers as ‘thieves’, generally speaking none of the group—a particular lawyer can sue for defamation (David Syme & Co v Canavan, 1918).
• Different result may follow if there is something that is also specifically referable to that person as an individual (Lever v Murray).
• Depending on the size and extravagance of the claim, there may be exceptional cases where members of the group may be able to sue.
o In such a case, the defamatory material that refers to a group might be understood as relating to each and every one of the members of the group (Bjelke-Petersen v Warburton, 1987).
