Understanding the Act of Publication in Defamation Law

A fundamental aspect of defamation is the act of publication, which is when the defamatory material is made available to a third party.

In this blog post, I discuss the principles of publication in defamation law, drawing upon the recent decision of Google LLC v Defteros [2022] HCA 27 and other key cases.

Publication of Defamatory Matter – Principles

The law surrounding publication in defamation is considered "tolerably clear" (Trkulja v Google LLC).

The principles relating to the publication of defamatory matter were first established in Webb v Bloch and later affirmed by the High Court of Australia in Fairfax Media Publications Pty Ltd v Voller.

Intentionality in Publication

In the Voller case, the Court examined the requirement of the common law of defamation that the publication of defamatory matter must be “intentional”.

The Court held that all that is required for intentionality, is that the defendant's act of participation in the publication be voluntary.

Publication and Liability as a Publisher

The majority in Voller further explored what the law requires for there to be a publication and for a person to be liable as a publisher.

Publication is described as the actionable wrong in defamation, by which harm is caused to a person's reputation.

It is a technical term, referring to a bilateral act where the publisher makes the defamatory material available and a third party has it available for their comprehension.

Publication can also be understood as the process by which a defamatory statement or imputation is conveyed.

Following the principles in Webb v Bloch, any act of participation in the communication of defamatory matter to a third party is sufficient to make a defendant a publisher, regardless of their knowledge.

This means that a person who has been instrumental in, or contributes to any extent to, the publication of defamatory matter is considered a publisher.

Key take-aways

• The act of publication is a critical element in defamation law.

• The principles of publication established in Webb v Bloch and affirmed in Voller provide guidance on what is required for a person to be liable as a publisher.

• Understanding these principles is essential for defamation lawyers and anyone seeking to navigate this complex area of law.

Cases referred to in this blog post:

1. Google LLC v Defteros [2022] HCA 27

2. Trkulja v Google LLC [2018] HCA 25

3. Webb v Bloch (1928) 41 CLR 331

4. Fairfax Media Publications Pty Ltd v Voller (2021) 95 ALJR 767; 392 ALR 540

Understanding the Tort of Injurious Falsehood

Injurious falsehood is a unique and distinct tort that protects businesses and individuals from the harmful effects of false statements.

Although often confused with defamation, it is important to recognize the key differences between these two legal concepts.

This blog post is about the nature and elements of the tort of injurious falsehood, drawing upon a recent decision, Jay & Anor v Petrikas & Ors (No 4) [2022] NSWDC 628, and other relevant case law.

Nature and Elements of Injurious Falsehood

According to Gummow J in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388, the tort of injurious falsehood has four elements:

1. A false statement of or concerning the plaintiff’s goods or business;

2. Publication of that statement by the defendant to a third person;

3. Malice on the part of the defendant; and

4. Proof by the plaintiff of actual damage suffered as a result of the statement.

It is crucial to note the key differences between injurious falsehood and defamation.

While defamation focuses on the protection of personal reputation, injurious falsehood protects proprietary and commercial interests.

As a result, a plaintiff must establish falsity, malice, and special damage in an injurious falsehood claim, unlike in defamation cases.

History and Development

The tort of injurious falsehood has its roots in actions for slander of title, where false statements cast doubt on the plaintiff's ownership of land, preventing them from leasing or selling the property.

This action expanded over time until it reached its modern form, covering falsehoods that cause actual damage when maliciously published.

The tort now includes various types of malicious falsehoods, such as slander of title and slander of goods, although it is not limited to these categories.

Relationship with the tort of deceit

Injurious falsehood shares similarities with the tort of deceit, as both involve false statements causing harm.

However, deceit focuses on false statements made to the plaintiff, while injurious falsehood concerns false statements made about the plaintiff to third parties.

Determining Injurious Falsehood at Trial: Key Questions for Judges

A judge must carefully examine the evidence and make determinations on several critical issues.

Drawing from the case of Jay & Anor v Petrikas & Ors (No 4) [2022] NSWDC 628, the following questions serve as a guide for judges when assessing the merits of an injurious falsehood claim:

1. Representations: The judge must first determine whether each of the publications in question conveyed certain representations. This involves assessing the content of the publications to establish if any false statements were made.

2. Connection to the plaintiff: Next, the judge must decide whether the representation(s) were of and concerning the plaintiffs (or either of them) in connection with their 'business.' This ensures that the false statements made in the publications relate to the plaintiffs and their commercial interests.

3. Falsity: If the representation(s) concern the plaintiffs and their business, the judge must then establish whether the representations were false. This step requires evaluating the truthfulness of the statements made in the publications.

4. Malice: If the representations are found to be false, the judge must determine whether the defendants published the publications (attributed to them) with malice. This involves examining the defendants' intentions and motives when making the false statements.

5. Actual damage: The judge must then decide whether the plaintiffs (or either of them) suffered actual damage as a result of the publications. This step requires an assessment of the harm caused to the plaintiffs' business or commercial interests due to the false statements.

6. Quantum of damages and additional awards: Finally, if actual damage is established, the judge must determine:

   1. The quantum of actual damage, which refers to the monetary value of the harm caused to the plaintiffs;

   2. Whether the plaintiffs (or either of them) are entitled to aggravated damages and/or exemplary damages. If they are, the judge must determine the quantum of either or both of such awards. Aggravated damages compensate for additional harm caused by the defendant's conduct, while exemplary damages serve to punish the defendant and deter similar behaviour in the future.

Key take-aways

• The tort of injurious falsehood is a distinct and important area of law that protects businesses and individuals from the damaging effects of false statements.

• Its unique elements and historical development set it apart from defamation.

Cases referred to in this blog post:

• Jay & Anor v Petrikas & Ors (No 4) [2022] NSWDC 628

• Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388

The Grapevine Effect and Defamation in the Age of Social Media

The 'grapevine effect' is a concept that has gained significant importance in defamation law, particularly with the rapid rise of social media.

This term is used to describe how defamatory material may be repeated or republished to others, causing damage to a much wider audience than initially intended.

In this blog post, I discuss the grapevine effect in the context of defamation law and examine some recent cases that have dealt with this issue.

The Grapevine Effect Explained

As noted in the recent case of Hockings v Lynch & Adams [2022] QDC 127, the grapevine effect has been used as a metaphor to help explain the basis on which general damages may be recovered in defamation actions.

The real damage caused by defamatory material cannot be ascertained and established, as it is impossible to track the scandal or determine the extent to which the poison may reach.

The grapevine effect provides a means by which a court may conclude that a given result was "natural and probable," depending on factors such as the nature of the false statement and the circumstances of its publication.

However, the grapevine effect does not operate in all cases, and republication is not always the "natural and probable" result of the original publication.

The Grapevine Effect and Social Media

The grapevine effect is particularly relevant in the context of social media, where defamatory material can spread rapidly and might emerge from its hiding place at some future date.

As observed in Hockings v Lynch & Adams, courts must be conscious that an award of damages needs to be sufficient to convince a bystander, who later learns of a slur through the grapevine, of the baselessness of the charge.

Case Examples

In O'Reilly v Edgar, the court accepted evidence that at least 1,000 members of the public group had downloaded and read defamatory posts, providing the foundation for a finding of wide publication.

In contrast, the case of Bolton v Stoltenberg relied on evidence of the 'reach' of a website in question and 'likes, comments, and shares' of defamatory posts, which the court used to infer that the material had been downloaded and read by a significant number of people.

Hockings v Lynch & Adams: A Closer Look

In Hockings v Lynch & Adams, the court found that in respect of certain occasions, posts were published beyond the admitted scope of publication due to factors such as the number of members in relevant Facebook groups and the overlap between groups.

However, the court also found that in other instances, publication was no greater than to those who were friends or followers of the pages in question.

Key take-aways

• The grapevine effect has significant implications in defamation law, especially in the context of social media.

• Courts must carefully consider the nature and extent of publication and republication in determining damages.

• As social media continues to evolve, it will be interesting to see how courts adapt to the changing landscape and deal with the grapevine effect in future cases.

Cases

In the blog post above, the following cases are mentioned:

1. Hockings v Lynch & Adams [2022] QDC 127

2. O'Reilly v Edgar [2019] NSWDC 374

3. Bolton v Stoltenberg [2018] NSWSC 1518

Understanding the concept of 'Vulgar Abuse' in defamation

With the proliferation of online communications and social media, the distinction between mere vulgar abuse and defamation has become increasingly important.

This blog post explores the concept of ‘vulgar abuse’ and the challenges that arise when assessing whether language damages a person's reputation.

The Concept of Vulgar Abuse

Vulgar abuse refers to language that is insulting or offensive but does not necessarily amount to defamation.

In order to distinguish between mere vulgar abuse and defamatory language, the context in which the terms are used must be considered, as well as the potential meanings conveyed by the language.

It is important to note that mere vulgar abuse, while offensive, does not inherently convey false statements that injure an individual's reputation.

Why Mere Vulgar Abuse is Not Defamatory

The primary reason mere vulgar abuse is not considered defamatory lies in its inability to cause significant harm to an individual's reputation.

While vulgar abuse may be offensive and hurtful, it often does not involve false statements about a person or their character.

Defamation, on the other hand, necessitates the communication of false information that damages a person's reputation in the eyes of others.

Moreover, vulgar abuse is often recognized as a form of emotional expression, rather than an assertion of fact.

For instance, the use of swear words or derogatory language may simply reflect the speaker's frustration or anger, rather than representing a meaningful claim about the targeted individual.

This emotional context can limit the extent to which vulgar abuse impacts a person's reputation, as right-thinking members of society may recognise it as an expression of emotion rather than a factual statement.

Challenges in Assessing Damage to Reputation

One of the main challenges in distinguishing between mere vulgar abuse and defamation is determining whether the language used has the potential to damage a person's reputation.

This can be particularly difficult in the context of social media and online communications, where the use of vulgar language and insults has become increasingly common.

The basic concepts are that:

• In order to assess whether language is defamatory or merely vulgar abuse, courts must carefully examine the context in which the words are used and the potential meanings that may arise.

• The presence of swear words or derogatory terms does not automatically preclude the possibility of defamation, as demonstrated in cases like McGuiness v J T Publishing Australia Pty Ltd [1999] NSWSC 471 and Aldridge v Johnston [2020] SASCFC 31.

• However, when offensive language is used without an accompanying false statement, it is less likely to be considered defamatory.

• As Spencer J explained in Ralston v Fomich (1992) 66 BCLR (2d) 166 at 169, certain words may not be capable of defamatory meaning without a qualifying statement or context.

Key takeaways

• While mere vulgar abuse may be offensive and hurtful, it is not considered defamatory due to its inability to cause significant harm to a person's reputation and its nature as an emotional expression rather than an assertion of fact.

• Assessing whether language is defamatory or simply mere vulgar abuse can be challenging, particularly in the context of social media and online communications. To make this determination, courts and legal professionals must carefully consider the context of the language used and the potential meanings that may arise.

Online defamation by 'Keyboard Warriors'

Social media and online platforms given rise to a breed of online troublemakers known as "keyboard warriors."

As a defamation lawyer, I witness firsthand the impact these individuals can have on my clients' reputations and businesses.

In this blog post, I explore the phenomenon of keyboard warriors, their motivations, and the potential consequences of their actions.

I. Defining Keyboard Warriors

A keyboard warrior is an individual who aggressively and passionately expresses their opinions, beliefs, or arguments online, typically through social media, forums, or other digital platforms, but avoids or refrains from engaging in face-to-face discussions or real-life confrontations.

These individuals are often perceived as overly confrontational, argumentative, and critical, hiding behind the anonymity and safety that the internet provides.

They might engage in trolling, cyberbullying, or other disruptive online behaviors, with little regard for the feelings or opinions of others.

II. Why Do People Become Keyboard Warriors?

There are various reasons why someone might become a keyboard warrior.

Some of these reasons include:

1. Anonymity: The internet provides a sense of anonymity, which emboldens some people to express their opinions more aggressively than they would in a face-to-face setting.

2. Emotional venting: Some individuals may use online platforms as a way to vent their emotions and frustrations, making them more confrontational in digital spaces.

3. Social validation: The desire for likes, shares, and other forms of social validation can prompt people to be more vocal and aggressive in their online opinions.

4. Lack of social skills: Some individuals may lack the social skills necessary for effective face-to-face communication, causing them to feel more comfortable expressing themselves online.

5. Insecurity: People who feel insecure about their opinions or knowledge might use the internet as a platform to assert themselves, compensating for their perceived shortcomings.

6. Disinhibition effect: Online communication often lacks the social cues and context that exist in face-to-face interactions, leading to a reduced sense of responsibility and increased impulsivity.

7. Echo chambers: People often surround themselves with like-minded individuals online, which can reinforce their beliefs and encourage aggressive behavior towards those who disagree.

8. Activism: Some people may become keyboard warriors to promote a cause, spread awareness, or influence public opinion.

9. Boredom or entertainment: For some, engaging in online arguments can be a source of entertainment or a way to pass the time.

10. Power dynamics: The internet allows people to feel a sense of power and control over their interactions, which may lead them to be more confrontational.

Understanding the motivations behind keyboard warriors can help businesses and individuals better manage and respond to their actions.

III. The Consequences of Keyboard Warriors on Reputation and Business

The impact of keyboard warriors can be far-reaching and damaging to businesses and individuals alike.

Defamatory statements posted online can spread quickly, leading to financial loss, harm to personal and professional relationships, and damage to reputations that may take years to recover from.

Furthermore, legal remedies can be costly and time-consuming, and even when successful, they may not fully repair the damage done.

Key Take-Aways

• Keyboard warriors are individuals who aggressively express their opinions online but avoid face-to-face confrontations.

• The motivations for becoming a keyboard warrior can range from anonymity and emotional venting to activism and boredom.

• Defamatory statements made by keyboard warriors can cause significant harm to businesses and individuals, both financially and reputation-wise.

• Understanding the motivations behind keyboard warriors can help in developing effective strategies to manage and respond to their actions.

The Illusory Truth Effect in Defamation: The Importance of Prompt Action

In defamation, clients must be ready to act quickly and not dawdle.

Winston Churchill once observed: "A lie gets halfway around the world before the truth has a chance to get its pants on."

This statement holds particular relevance in the context of defamation cases, where the illusory truth effect can contribute to the rapid spread and entrenchment of falsehoods.

What is the Illusory Truth Effect?

The illusory truth effect is the feeling when we hear information that we believe it to be true, because we've heard it before.

The illusory truth effect is a cognitive bias that causes individuals to perceive false statements as true after being repeatedly exposed to them.

This psychological phenomenon underscores the power of repetition in shaping our beliefs and perceptions, making it a significant challenge in defamation cases where false information can become deeply ingrained in public perception.

First observed in a study by Hasher, Goldstein, and Toppino (1977), this psychological phenomenon highlights the power of repetition in shaping our beliefs and perceptions.

Several factors contribute to the illusory truth effect

1. Cognitive fluency: Repeated exposure to information makes it easier for our brains to process that information, leading to an increased sense of familiarity and truthfulness.

2. Confirmation bias: People have a natural tendency to favour information that aligns with their existing beliefs, making it more likely that they will accept repeated false statements as true.

3. Source amnesia: Over time, people may forget the origin of the information they have encountered, making it difficult to discern whether the source was credible or not.

Implications for Defamation Cases

In defamation cases, the illusory truth effect highlights the importance of acting promptly when defamed.

The longer false information is allowed to circulate, the more deeply it becomes entrenched in public perception, making it increasingly difficult to restore reputations and refute claims.

The widespread use of social media and digital platforms can further amplify the effect, enabling false information to be shared and repeated on a global scale.

Strategies for Addressing the Illusory Truth Effect in Defamation Cases

1. Acting quickly: When faced with defamatory statements, it is essential to take immediate action to mitigate the spread of misinformation. By responding promptly, legal professionals can limit the extent of reputational damage and challenge falsehoods before they become deeply ingrained.

2. Fact-checking and providing accurate information: Thoroughly investigating claims and presenting accurate information can help counteract the impact of false statements. Demonstrating the inaccuracy of defamatory statements can help to discredit the falsehoods and restore the reputations of those affected.

3. Educating the public and the court about the illusory truth effect: Raising awareness of this cognitive bias can help create a more discerning audience that is less susceptible to the influence of misinformation. This can be achieved through expert evidence, articles, and presentations.

4. Emphasizing the credibility of sources: When presenting information in court, defamation lawyers should emphasize the credibility of their sources to counteract the influence of the illusory truth effect. Establishing the reliability of the information being presented can help challenge false beliefs and promote a more accurate understanding of the facts.

5. Engaging in effective communication: Legal professionals should strive to communicate complex information in a clear, concise, and compelling manner. This can help ensure that the truth is more easily understood and retained by the audience, reducing the impact of the illusory truth effect.

Understanding defamation: What makes a statement defamatory?

A simple explanation of what makes something defamatory ... does it make people (a) think less of the person it is about, or, (b) make people want to avoid that person.

It's not necessary for the statement to say that the person is bad, but if it says that they are not good at their job or lack qualifications, that is enough.

An example is if someone says "X is a nice person but can't do surgery well" about a surgeon, it would be damaging to their reputation because it affects their profession, but if someone says the exact same words about a person who isn't a surgeon (perhaps, for example, where it turns out the person is actually a plumber), it wouldn't be considered defamatory.

The Link Between Duels and Defamation

Let's duel at dawn! ... The history of defamation takes most people by surprise, but makes sense when you work as a defamation lawyer.

Doing this job, you come to realise that it's not so much about money for the injured party. It's about their reputation being vindicated.

The evolution of how society deals with false statements that damages a person's reputation has many twists and turns. But one linkage is especially thought-provoking.

In the past, the duel was seen as a way to restore a person's honour if it was believed that their reputation had been damaged by false statements.

As society progressed, the use of duels as a means of resolving defamation cases was phased out and replaced with more legal forms of redress.

In 1613, King James I issued a royal edict against duelling, and this was reinforced by a Star Chamber decree in the following year.

From that point on, courts waged a continuous hostility to the duel in all its forms. They refused to regard it as in any way an affair of honour, but held it to be an unlawful assembly in an aggravated form.

The creation of the tort of written defamation was a way to address non-political, non-criminal libels.

It was a solution to the question of how to restrain these types of libels, when the vindication of the duel was no longer an option.

We often overlook the historical context of our laws, as we navigate a rapidly-changing landscape. But it helps to better understand human nature, if we learn about where our laws have come from.

Compensating for Injury to Feelings: A Standard Part of Defamation Damages

Many people are surprised to learn that damages for injury to feelings can be awarded in defamation cases. In addition to protecting one's reputation, the tort of defamation also recognizes the harm caused by hurt feelings.

Lord Diplock stated, "The harm caused to the plaintiff by the publication of a libel upon him often lies more in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him."

An award for injury to feelings is a standard part of compensatory damages. Additionally, if the defendant's conduct has exacerbated the plaintiff's injury, they may also be entitled to "aggravated damages." It's important to note that corporations cannot claim injury to feelings.

It's possible for a plaintiff to prove injury to reputation by showing they have been "shunned and avoided" by others as a result of the defamatory statement. BUT, such evidence can also demonstrate substantial hurt to the plaintiff's feelings. 

What are the consequences of being a publisher of defamatory third party comments on social media?

DEFAMATION ... In Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 the High Court affirmed traditional concepts of what a 'publisher' is in defamation law (in the context of social media).

1. The media companies Fairfax Media Publications, Nationwide News, and Australian News Channel were held liable for defamation as publishers of third party comments made on their public Facebook pages.

2. The High Court of Australia determined that liability as a publisher does not require knowledge of the defamatory matter and that any act of participation in the communication of defamatory matter to a third party is sufficient to render a person a publisher.

3. Importantly, the Court found that the degree of active and voluntary participation is irrelevant, provided that some kind of involvement can be proved.

4. The media companies were held liable for defamation as publishers of the defamatory third party comments because they actively and voluntarily participated in the process of making the comments available for comprehension by a third party.

If you have been a victim of defamation on social media, feel welcome to contact me to discuss your options.