Understanding the Serious Harm Test in Defamation Law (yet to apply in WA)

In this blog post, I explore the serious harm test, drawing on the first Australian trial to consider it, Martin v Najem [2022] NSWDC 479, and other relevant cases.

The Serious Harm Test

The serious harm test, as adapted from Section 1 of the UK's Defamation Act 2013, requires plaintiffs to establish that serious harm has been or is likely to be caused by the defamatory statements in question.

As laid out in the case of Newman v Whittington [2022] NSWSC 249, this test aims to discourage cases where the legal costs are disproportionate to the potential damages.

Factors to Consider

In assessing whether serious harm has been or is likely to be caused, the following factors may be considered, as outlined in Martin v Najem [2022] NSWDC 479:

1. The meaning of the words and the gravity of any imputations.

2. The extent of publication.

3. The standing of the defendant.

4. The identity of the recipients and their relationship (if any) with the plaintiff.

5. The circumstances of the plaintiff.

6. The reaction of the recipients.

However, these factors should not be treated as evidence in themselves, but rather as headings under which relevant evidence may be presented.

Proving Serious Harm

Establishing serious harm requires a fact-rich proof of harm that is actually or likely to be serious, as opposed to mere inferences of serious harm. There must be causation between the publication and the serious harm, which may be established by inference, particularly when considering future matters such as the statement's impact on people who will come to know the plaintiff in the future (Napag Trading Ltd v Gedi Gruppo Editoriale SPA [2020] EWHC 3034 (QB)).

Martin v Najem [2022] NSWDC 479

Introduction

This was legal battle between two prominent food influencers.

The plaintiff, known by his social media handle "@Issac_eatsalot", and the defendant built their careers on blogging about food-related issues on Instagram. However, their rivalry took a dark turn, resulting in defamatory comments.

Background

@Issac_eatsalot, a former pastry chef, began his social media career by participating in competitive food eating contests and promoting the venues he visited. He had amassed a significant following on various social media platforms and frequently worked in paid partnerships with venues and businesses. His wife, who was also involved in his food blogging work, had been directly affected by the escalating situation.

The Feud

On April 22, 2022, @Issac_eatsalot was informed by one of his followers that the defendant had published a video about him on Instagram. In the video, the defendant called @Issac_eatsalot a paedophile and a racist. Concerned and offended by the content, @Issac_eatsalot discovered that the defendant had directed his followers to a second Instagram account, where he continued to post defamatory content.

The Impact

The plaintiff's anxiety and distress were exacerbated by the knowledge that the defendant was an Instagram business rival with a relatively substantial following.

The defendant's campaign of abuse continued with several more videos and a direct message threatening to destroy @Issac_eatsalot. This resulted in the plaintiff reporting the publications to the police and seeking medical assistance.

The Legal Battle

The plaintiff commenced legal proceedings in July 2022, seeking damages for the defamatory content posted by the defendant. Since then, @Issac_eatsalot continued to receive negative and derogatory comments on his own Instagram account.

The Findings

In Martin v Najem [2022] NSWDC 479, the court found that the publications in question caused serious harm due to factors such as the extreme nature of the allegations, the manner of publication, the extent of publication, and the ongoing impact on the plaintiff's health and security.

The court also considered the reactions of third parties and the plaintiff's own affidavit detailing the stress and anxiety caused by the publications.

Common Law Qualified Privilege in Defamation: Understanding the Reciprocity of Duty and Interest

Defamation law seeks to balance two competing interests: the protection of an individual's reputation and the freedom of speech.

One of the defences available to a defendant in a defamation case is common law qualified privilege, which arises when there is a reciprocity of duty and interest between the publisher and the recipient of the statement.

This blog post provides a better understanding of common law qualified privilege, focusing on the concept of “interest”, as highlighted in the case of Bolton v Stoltenberg [2018] NSWSC 1518.

The Defence of Qualified Privilege

A communication is protected by common law qualified privilege when the publisher has a legal, social, or moral interest or duty to make a statement on a particular occasion, and the recipient has a corresponding interest or duty to receive it (Bashford v Information Australia (Newsletters) Pty Ltd [2001] NSWCA 470).

The question of whether common law qualified privilege applies depends on a close scrutiny of the circumstances of each case, the situation of the parties, the relations of all concerned, and the events leading up to and surrounding the publication (Bashford).

As a result, determining whether qualified privilege applies can be challenging and requires a careful analysis of the specific facts of the case.

Reciprocity of Duty and Interest

The concept of reciprocity of duty and interest is essential to the defence of qualified privilege.

To establish this reciprocity, the publisher must demonstrate that they had an interest or duty in making the statement and that the recipient had a corresponding interest or duty in receiving it.

In the case of Visscher v Maritime Union of Australia (No 6), Beech-Jones J rejected a submission that readers of a website operated by the Maritime Union of Australia had a direct or indirect interest in the maritime industry simply because of the nature of the forum. Beech-Jones J emphasized that the defence of common law qualified privilege could not apply to unrestricted publications available to the general public.

Excessive Publication

Even when there is a reciprocity of duty and interest, excessive publication may still defeat the defence of qualified privilege.

Excessive publication occurs when a statement is made available to a broader audience than necessary to satisfy the interest or duty.

In Vakras v Cripps, the Victorian Court of Appeal held that publication to the world at large on general websites could be evidence of excessive publication and thus, not protected by qualified privilege.

Bolton v Stoltenberg [2018] NSWSC 1518

In Bolton v Stoltenberg [2018] NSWSC 1518 the defense of common law qualified privilege was considered by the court.

The case involved a Facebook page called Narri Leaks, which was claimed to be dedicated to dealing with issues of interest to persons within the Narrabri Shire. The defendant, Mr. Stoltenberg, argued that the readers of the Narri Leaks Facebook page were residents of the Narrabri Shire and had a reciprocal interest in issues relating to the Narrabri Shire Council.

The court, however, found that the readership of Narri Leaks extended far beyond the residents of the Narrabri Shire Council who were interested in the finances of the Council. The judge cited evidence such as interrogatories provided by Mr. Stoltenberg, Facebook posts made by him, and Facebook activity logs, among other things. The posts themselves contained references to the wide readership of Narri Leaks, and the defendant admitted to having spent money on "boosting" posts all over the state.

As a result, the court concluded that Mr. Stoltenberg had failed to establish that the readers of the Narri Leaks Facebook page were residents of the Narrabri Shire with a reciprocal interest in a limited subject matter.

Furthermore, even if the matters complained of were only downloaded and viewed by a limited class of persons with an interest in a limited subject matter, the evidence of publication of the Narri Leaks Facebook page was evidence of excessive publication.

The court also rejected the argument that the matters complained of fell within the special and reciprocal interest identified by Mr. Stoltenberg. While the finances of the Narrabri Shire Council and the appointment of General Managers were important topics in the Narrabri area, the defendant had no duty to attack the plaintiff's reputation. The court concluded that the defense of common law qualified privilege was not applicable in this case.

This case demonstrates that in the digital age, establishing a limited audience for defamatory publications can be challenging, especially when social media platforms are involved. Courts will carefully scrutinize the facts to determine whether a defense of qualified privilege can be upheld. In this case, the court concluded that the readership of the Narri Leaks Facebook page was not limited to residents of the Narrabri Shire with a reciprocal interest in a limited subject matter, and therefore, the defense of qualified privilege was rejected.

Key Take-Aways

• Establishing the defence of qualified privilege in defamation cases requires a close examination of the circumstances surrounding the publication and the interests or duties of the publisher and recipient.

• It is essential to demonstrate a reciprocity of duty and interest and to avoid excessive publication.

• Ultimately, whether qualified privilege applies will depend on the specific facts and context of each case.

Fair Comment in Defamation Law: Understanding the Key Principles

Fair comment is an important defence in defamation cases that serves to protect freedom of speech, allowing people to express their honest opinions on matters of public interest. In this article, we will discuss the key principles of fair comment in defamation law, using the case of Cook v Flaherty [2021] SASC 73 as a reference.

Fair Comment vs. Fact

According to Pryke v Advertiser Newspapers Ltd, a statement can only be considered comment if the facts it is based on are stated or indicated with sufficient clarity. As explained in Channel Seven Adelaide Pty Ltd v Manock, fair comment protects even obstinate, foolish, or offensive statements of opinion, provided certain conditions are met. The key distinction is between comments (such as opinions, inferences, or evaluations) and statements of fact, which affects the viability of the defence.

The Conventional Case of Fair Comment

In Pervan v North Queensland Newspaper Co Ltd, McHugh J described the conventional case of fair comment as one where the basis of the comment appears in the publication, and the reader is able to judge whether the facts justify the comments. The defence is concerned with comments based on facts, and the truth of those facts will affect the viability of the defence.

The Kemsley Situation

The Kemsley situation, as explained in Cook v Flaherty [2021] SASC 73, refers to a type of fair comment where certain forms of conduct are of such a nature as to invite comment. In these cases, it is not necessary for the reader, viewer, or listener to be in a position to form their own opinion, as long as the statements are presented as comments and not as facts.

Notorious Facts

In order for a comment to be considered fair, the facts it is based on must be true or published under privilege. While the facts do not necessarily have to be stated explicitly in the publication, they can be referred to or be considered "notorious," meaning they are well-known or easily ascertainable matters in the public arena.

Fairness and Accuracy

As mentioned in Cook v Flaherty [2021] SASC 73, fairness requires that the comment or opinion be based on facts that are true or published under privilege. Inaccurate or false facts will render a comment unfair, and therefore, not protected by the fair comment defence.

Key Take-Aways

• In summary, the fair comment defence in defamation law is an important aspect of protecting freedom of speech, allowing individuals to express their honest opinions on matters of public interest.

• The key principles of fair comment involve distinguishing between comments and statements of fact, the truth of the underlying facts, and the fairness and accuracy of the comment.

The Role of Mode of Publication in Determining Meaning in Defamation Cases

In defamation law, the mode of publication plays a crucial role in determining what meaning was conveyed to the ordinary reasonable viewer or reader.

This blog post discusses the significance of mode of publication in defamation cases and will refer to relevant case law, including the recent decision in Nassif v Seven Network (Operations) Ltd [2021] FCA 1286.

Mode of Publication

As established in V’landys v ABC, the mode of publication can be a relevant consideration in determining what was conveyed to the ordinary reasonable viewer or reader. This is particularly applicable in cases where the publication is in electronic form, such as television broadcasts.

In Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, the court noted that the mode or manner of publication is a material matter in determining what imputation is capable of being conveyed. The ordinary reasonable reader is more likely to read a book with greater care than they would a newspaper. Likewise, they may not devote the same level of concentration to every part of a television or radio program as they would to a written article.

However, as noted in V’landys v ABC, television broadcasts are not as transient as they once were, as they are generally made available over the internet and can be replayed. Still, the nature of the medium, including sounds, images, and manner of speech, is relevant in determining what meanings are carried by the publication.

Defamatory Meaning

The principles for determining defamatory meaning have been summarised in several judgments, such as Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 and Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652.

The applicant bears the onus on the balance of probabilities that the alleged defamatory meanings or imputations were conveyed by the publication in question.

The relevant question is whether the publication would have conveyed the alleged meanings to an ordinary reasonable person.

This hypothetical individual is assumed to be fair-minded and neither perverse, morbid nor suspicious of mind. They are not a lawyer who examines the publication overzealously but rather someone who views the publication casually and is prone to a degree of "loose thinking."

Each alleged defamatory imputation has to be considered in the context of the entire publication. Striking words or images may stay with the viewer or reader and give them a predisposition or impression that influences all that follows, as stated in V’landys v ABC.

Key Take-Aways

• In defamation cases, the mode of publication plays a significant role in determining what meaning was conveyed to the ordinary reasonable viewer or reader.

• Electronic forms of publication, such as television broadcasts, may involve particular considerations.

Understanding the Grapevine Effect in Defamation Cases

Defamation cases can be complex, as the extent of the damage to the plaintiff's reputation is not always easily quantifiable.

One concept that often arises in these cases is the 'grapevine effect', which acknowledges the potential for defamatory material to spread beyond its original publication through various channels, leading to potentially far-reaching consequences.

In this blog post, I explore the grapevine effect in defamation cases, with a focus on how it can impact damage assessments and the role of social media in its proliferation.

The Grapevine Effect in Defamation

In the case of Brose v Baluskas & Ors (No 6) [2020] QDC 15, the court explained the grapevine effect as "the realistic recognition by the law that, by the ordinary function of human nature, the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published" (Wagner, 269).

This effect can have a significant impact on the plaintiff's reputation, even if the original publication reached a relatively small audience.

The Grapevine Effect and Social Media

The proliferation of social media has made it even easier for defamatory material to spread through the grapevine effect. With just a few clicks or taps on a mobile device, users can share posts that contain defamatory content, potentially reaching a much wider audience than the original publication.

However, it is important to note that the grapevine effect does not automatically arise in all cases involving social media. As noted in Mickle v Farley [2013] NSWDC 295, there must be some evidentiary basis pointing to the grapevine effect's existence before it can be taken into account for the assessment of damages.

Determining the Grapevine Effect's Impact

Assessing the grapevine effect's impact on damages can be challenging, as it is often difficult to determine the true extent of the defamatory material's dissemination. Courts must consider both the initial publication and any subsequent republications or media coverage to gauge the extent of the plaintiff's reputation damage.

In some cases, as seen in Brose v Baluskas & Ors (No 6), the media coverage of defamation proceedings can contribute to the grapevine effect, potentially exacerbating the plaintiff's reputational harm.

In assessing damages, courts also need to consider the need for vindication of the plaintiff's reputation. The sum awarded for vindication must be "at least the minimum necessary to signal to the public the vindication of the [plaintiff’s] reputation and sufficient to convince a person to whom the publication was made or to whom it has spread along the grapevine of 'the baselessness of the charge'" (Brose v Baluskas & Ors (No 6), [457]).

Key Take-Aways

• The grapevine effect is an important factor to consider in defamation cases, as it can significantly impact the extent of damage to the plaintiff's reputation.

• With the rise of social media, the grapevine effect has become even more potent, making it crucial for courts to carefully assess its role in each case.

Understanding Imputations in Defamation Law

Imputations play a crucial role in defamation cases, as they help identify the defamatory meaning or meanings conveyed by the published material.

This blog post discusses the significance of pleading imputations in defamation cases, the role of context in determining their meaning, and the importance of ensuring that imputations are sufficiently precise and unambiguous.

Imputations under the Uniform Defamation Legislation

The significance of pleading imputations has evolved under the uniform defamation legislation. Previously, under the Defamation Act 1974 (NSW), each imputation constituted a separate cause of action, as seen in Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174. However, under the current legislation, there is a single cause of action for the publication of defamatory material, even if multiple imputations are conveyed.

Pleading imputations serves several purposes, including identifying the scope of inquiry for trial and allowing defendants to raise defences, including statutory defences under sections 25 and 26 of the Defamation Act, which are responsive to imputations (Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125).

The Role of Context in Determining Imputations

The context of the published material is crucial in determining the meaning of a pleaded imputation.

According to Mason P in Greek Herald Pty Ltd v Nikopoulos (2002) 54 NSWLR 165, imputations should not be considered in isolation, but rather, in relation to the subject matter of the publication.

Context may clarify or intensify the "sting" of an imputation, or conversely, it may weaken it (Greek Herald Pty Ltd v Nikopoulos at [20]–[22]).

However, it is important to note that context cannot be used to change the meaning of an imputation that has been clearly chosen by the pleader (Charan v Nationwide News Pty Ltd [2019] VSCA 36 at [140]).

The Importance of Precision and Unambiguity

Imputations should be sufficiently precise and unambiguous to enable a fair trial.

Ambiguity in imputations may need to be resolved as an interlocutory issue before or during the trial (Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125 at [171]).

The trier of fact, whether a judge or a jury, should not have to resolve any ambiguity in the pleaded imputations, as their task is to determine the meaning of the published material rather than the meaning of the parties' pleadings (Singleton v Ffrench; Greek Herald Pty Ltd v Nikopoulos at [24]; Gacic v John Fairfax Publications Pty Ltd [2011] NSWCA 362 at [68]; Fenn v Australian Broadcasting Corporation at [47]).

Key Take-Aways

• Imputations are central to defamation cases, as they help define the defamatory meaning or meanings conveyed by the published material.

• When pleading imputations, it is important to consider the context in which they appear and to ensure that they are sufficiently precise and unambiguous.

• By doing so, parties can streamline the litigation process and enable a fair and efficient trial.

Understanding the Hore-Lacey Defence in Defamation Law

Defamation law plays a critical role in protecting reputations and providing recourse for individuals who have been wronged through false statements.

One of the key defences in defamation law is the Hore-Lacey defence, which has its origins in the case of David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667.

In this blog post, I explore the Hore-Lacey defence and how it has evolved over time, by examining its application in various cases.

The Hore-Lacey Defence Explained

The Hore-Lacey defence is based on the principle that a defendant can assert a differently nuanced meaning or imputation from that asserted by the plaintiff, as long as it does not differ in substance (whether more or less injurious or serious in its defamatory character) (Hore‐Lacy 1 VR at 689 [63], Charles JA).]

This defence allows a defendant to plead the truth of an imputation that is less injurious and not substantively different from the one pleaded in the statement of claim, as a complete defence to the plaintiff's claim (Moodie 28 WAR at 320 [19]–[20] per Anderson J, 328 [58] per Stetlyer J at 335–336 [94] and per McLure J at [59]).

Key Cases and Developments

In Wing v The Australian Broadcasting Corporation [2018] FCA 1340, the respondents argued that their defence of justification based on the variant imputations constituted a good Hore-Lacy defence. They cited West Australian Newspapers Ltd v Elliot (2008) 37 WAR 387, Hyams v Peterson [1991] 3 NZLR 648, and Lewis v Daily Telegraph Ltd [1964] AC 234 as authorities that supported their position. The court ultimately held that the Hore-Lacy defence applied in this case.

Another important case is Polly Peck (Holdings) Ltd v Trelford [1986] QB 1000, which Hore-Lacy 1 VR 667 expressly departed from. In Hore-Lacy, the court required the defendant to plead the specific imputation that it alleged the matter complained of conveyed, so that neither party could raise a meaning substantially different from, or more injurious than, the meanings alleged by the plaintiff at trial (1 VR at 689 [63], Charles JA).

Furthermore, the case of Mickelberg v Hay [2006] WASC 285 discussed the way in which the Full Court of the Supreme Court of Western Australia in Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314 had dealt with Polly Peck [1986] QB 1000 and Hore‐Lacy 1 VR 667. The court in Moodie adopted a different test by allowing the defendant to plead the truth of an imputation of a lesser degree of seriousness as a complete defence to the plaintiff's claim.

Extending the Limitation Period for Defamation Actions: Key Considerations

Defamation law exists to protect individuals from false statements that may damage their reputation.

In Australia, there are strict time limits within which defamation actions must be commenced. However, in certain cases, the court may grant an extension of this limitation period.

This blog post discusses the factors that courts consider when deciding whether to extend the limitation period for defamation actions, with reference to the decision in Lehrmann v Network Ten Pty Limited (Limitation Extension) [2023] FCA 385 and other relevant cases.

General Principles

Section 56A of the earlier and relevant version of the NSW Limitation Act outlines the circumstances in which a court may extend the limitation period for defamation actions. The court must be satisfied that it was not reasonable for the plaintiff to have commenced the action within one year from the date of the publication, and may extend the limitation period up to a maximum of three years from the date of publication.

As explained in Landrey v Nine Network Australia Pty Ltd [2023] FCA 27 and Paule v McKay (No 2) [2022] ACTSC 190, the court engages in an evaluative analysis to determine whether it was not reasonable for the plaintiff to have commenced the action within the one-year period. This analysis is based on objective factors and the individual circumstances of each case.

Factors Considered by the Court

In determining whether it was not reasonable for the plaintiff to have commenced the action within the one-year period, the court may consider factors such as:

1. The plaintiff's contemporary, subjective views and reasoning: The court will examine the plaintiff's actual reasons for not commencing the action within the one-year period, as explained in Carey v Australian Broadcasting Corporation [2010] NSWSC 709.

2. Changing circumstances during the limitation period: The court must consider any changes in the plaintiff's situation during the limitation period and how these changes may have impacted the reasonableness of commencing the action.

3. The "ordinary" position when criminal allegations are made: As noted in Joukhador v Network Ten Pty Ltd [2021] FCAFC 37, the court must evaluate the plaintiff's situation in light of any related criminal allegations and the potential impact on the defamation action.

4. The discretion conferred by s 56A(2) of the Limitation Act: The court has the discretion to extend the limitation period if it is satisfied that it was not reasonable for the plaintiff to have commenced the action within the one-year period.

Lehrmann v Network Ten Pty Limited (Limitation Extension) [2023] FCA 385

In Lehrmann, the court identified several key factors that influenced its decision to extend the limitation period for the defamation action. These factors included:

1. The plaintiff receiving express advice to defer any defamation proceedings and relying on that advice.

2. The possibility of prosecution being a real concern for the plaintiff, leading him to prioritize the criminal allegations over the defamation action.

3. The potential prejudice to the plaintiff's defense in the criminal case if he pursued the defamation action simultaneously.

4. The plaintiff's efforts to engage with the Australian Federal Police (AFP) in an attempt to avoid prosecution, which aligned with his broader defense strategy.

5. The unique and compelling circumstances of the case, including the high-profile nature of the criminal allegations and the plaintiff's need to direct his resources and energies towards his defense.

Key Take-Aways

• When determining whether to extend the limitation period for a defamation action, courts consider a range of factors that may render it not reasonable for the plaintiff to have commenced the action within the one-year period.

• Ultimately, the court's decision will depend on the individual circumstances of each case, as well as an objective evaluation of the relevant factors.

• In light of the cases discussed, it is clear that courts will carefully examine factors such as the plaintiff's subjective views and reasoning, changing circumstances during the limitation period, any related criminal allegations, and the potential impact of the defamation action on other legal proceedings. Importantly, the court's evaluation is not based on a set of rigid rules, but rather a holistic assessment of the circumstances surrounding the plaintiff and the defamation claim.

• Individuals considering pursuing a defamation action should be aware of the strict time limits that apply and the factors that courts consider when assessing an application for an extension of the limitation period. It is crucial to consult with a legal professional experienced in defamation law to ensure that any potential claim is pursued in a timely manner and within the appropriate legal framework.

• Moreover, individuals facing both defamation claims and related criminal allegations should carefully weigh the potential consequences of pursuing both legal actions simultaneously. In such cases, prioritising one's defence in criminal proceedings may be a compelling factor in convincing a court to extend the limitation period for a defamation action.

The Intricacies of the "Reply to Attack" Defence in Defamation Law

Defamation law is a complex area that seeks to balance the freedom of expression with the protection of an individual's reputation.

One defence often invoked in defamation cases is the "reply to attack" defence, which arises from the common law principle of qualified privilege.

This blog post explores the "reply to attack" defence and its key aspects, with reference to the recent Australian Federal Court decision of Palmer v McGowan (No 5) [2022] FCA 893.

1. The Essence of the Defence:

The "reply to attack" defence is a species of common law qualified privilege that applies when a defendant responds to a public attack on their reputation or conduct by the plaintiff (or an interest the defendant is entitled to protect).

The essence of the defence lies in the presence of a sufficient connection between the defamatory matter and the privileged occasion (Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366).

The public's interest in hearing the response of the target to public criticisms is the basis for this privilege (Gould v Jordan (No 2) [2021] FCA 1289).

2. The Attack and the Response:

For the defence to operate, there must have first been an attack on the defendant (Gould v Jordan).

The response must be commensurate with the attack, but the law gives the defendant some latitude. As Dixon J explained in Penton v Calwell (1945) 70 CLR 219, the purpose of the privilege is to allow the defendant to freely submit their answer or counter-attack to the public to whom the plaintiff has appealed or attacked the defendant.

3. Proportionality and Malice:

Any question of proportionality arises not on the issue of whether an occasion of privilege exists, but rather at a later stage of the enquiry, namely whether the defendant was actuated by malice (Penton v Caldwell; Loveday v Sun Newspapers Ltd (1938) 59 CLR 503).

4. Ripostes and Qualified Privilege:

In some instances, a defendant's reply may be considered a riposte, which is a response to an allegedly defamatory retort that was made in response to an earlier alleged defamatory attack.

The law generally does not extend qualified privilege to ripostes (Kennett v Farmer [1988] VR 991), as granting an initial defamer a right of reply would defeat the policy upon which the privilege is founded.

5. Palmer v McGowan (No 5) [2022] FCA 893

In the case of Palmer v McGowan (No 5) [2022] FCA 893, the judge thoroughly analyzed the "reply to attack" defense that was invoked by Mr. Palmer.

The judge first considered the legal principles surrounding the defense and then applied these principles to the facts of the case to determine whether the defense was available to Mr. Palmer.

The judge began by examining the relevant principles that underpin the "reply to attack" defence.

In applying these principles to the case, the judge closely scrutinsed the various "attacks" made by Mr. McGowan that Mr. Palmer claimed entitled him to the defence.

After assessing the evidence and arguments presented by both parties, the judge identified three main reasons for the ultimate unavailability of the defence to Mr. Palmer.

First, the judge noted that almost all of the alleged attacks by Mr. McGowan had already been responded to by Mr. Palmer before the relevant Cross-Claim Matters occurred. This led the judge to conclude that the Cross-Claim Matters were not sufficiently connected to any attack by Mr. McGowan, which is a crucial element of the "reply to attack" defense.

Secondly, as a result of this lack of connection, the judge determined that the Cross-Claim Matters were, in essence, separate attacks that did not qualify for the protection of the "reply to attack" defense.

Lastly, the judge also discussed the concept of "ripostes" in the context of the "reply to attack" defense. A riposte refers to a response to an allegedly defamatory retort that itself was made in response to an earlier alleged defamatory attack. The judge clarified that the law does not grant protection to such ripostes under the "reply to attack" defense.

Key take-aways

• The "reply to attack" defence in defamation cases is an intricate area of law that requires a careful analysis of the relationship between the initial attack, the defendant's response, and the presence of any ripostes.

• The case of Palmer v McGowan (No 5) [2022] FCA 893 provides valuable insight into the application of this defence and the factors that courts may consider when determining whether the defence is available to a defendant in a defamation claim.

Striking the Balance: Defamation and Multiple Meanings in Court

Defamation law exists to protect individuals from false statements that harm their reputation, while also respecting freedom of expression.

A key challenge for courts when handling defamation cases is determining the meaning of allegedly defamatory statements. This is particularly difficult when a statement is capable of conveying multiple meanings.

In this blog post, I explore the approach courts take in such situations, drawing on the case of Duma v Fairfax Media Publications Pty Limited (No 3) [2023] FCA 47 and other relevant case law.

Finding the Meaning

In Duma, the respondents argued that the court should find "an approximate centre-point in the range of possible meanings" or the single meaning that is "the (or a) dominant one" when determining the meaning of a potentially defamatory statement.

This approach, they argued, would protect the balance between freedom of expression and protection of reputation by shifting "the preferred meaning to the middle ground" (Duma, [51]).

However, the court rejected this argument, stating that it confuses the characteristics of the reasonable reader with the approach to determining meaning.

Instead, the court emphasized that its task is to determine "the single meaning" of the allegedly defamatory material (Duma, [52]).

The Reasonable Reader and Determining Meaning

The court in Duma highlighted the distinction between the characteristics of the hypothetical reasonable reader and the meaning of the words in question. While the reasonable reader is described as a person "who does not, and should not, select one bad meaning where other non-defamatory meanings are available" (Jeynes v News Magazines Ltd [2008] EWCA Civ 130 at [14]), this does not equate to a prescription for how the court should attribute meanings to potentially defamatory words (Duma, [53]).

In Rufus v Elliott [2015] EWCA Civ 121, Sharp LJ clarified that the court is not required to select a non-defamatory meaning simply because it is available. Instead, the touchstone remains what the ordinary reasonable reader would consider the words to mean (Duma, [54]).

This approach was endorsed by the Supreme Court of the United Kingdom in Stocker v Stocker [2020] AC 593. Lord Kerr stated that the court is not obliged to select a non-defamatory meaning among a range of meanings simply because it is possible to do so. The ordinary reasonable reader's understanding remains the central consideration (Duma, [54]).

The Australian Approach

The law in Australia is consistent with the reasoning in Rufus and Stocker. In cases such as Armstrong v McIntosh (No 4) [2020] WASC 31, Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68, and Bazzi v Dutton [2022] FCAFC 84, Australian courts have similarly rejected the idea that they must select a non-defamatory meaning where one is available.

The focus remains on the ordinary reasonable person's understanding (Duma, [55]).

Key take-aways

• In defamation cases where multiple meanings are possible, courts must determine the single meaning of the allegedly defamatory material.

• The ordinary reasonable reader's understanding serves as the touchstone for this determination. Courts are not required to select a non-defamatory meaning simply because it is available.

• By focusing on the ordinary reasonable reader, courts can strike a balance between freedom of expression and protection of reputation in defamation cases.