LAWS1114 Lecture 9



  • One 30 min question, two 20 min questions


  • Focus in this lecture is on liability concepts
  • Defamation is about injury or damage to reputation
  • NB: Criminal defamation will not be examinable.

Basic Liability Concepts

  • Defamatory reputation
  • Defamatory matter
  • Reference to the plaintiff
  • Publication

Historical background

  • General law = common law. Judge-made law.
  • Defamation at common law:
    • Libel: where you have a permanent form of defamation (eg. in print)
    • Slander: oral form of defamation (need to prove damage to person)
  • Defamation Act 1889 (Qld) was a complete codification of the law relating to defamation in Queensland
    • We don’t talk about libel or slander. It’s just defamation.
  • Chapter XXXV (ss 365-89) of the Criminal Code of Queensland 1899 – reflect the Defamation Act 1889 (Qld) as a codification of the law relating to defamation in Queensland.
  • The Defamation Act 2005 commenced operation in 1 January 2006 and modifies (like the CLA) the common law and is used in conjunction with it.
  • Our law on defamation comprises of common law and the Defamation Act 2005
    • Common law came back into operation in Queensland!

Defamation Act 2005 (Qld)

  • The Defamation Act 2005 (Qld) is not a codification of the law of defamation in Queensland: see sections 6 and 7 regarding the operation of the Act and the general (common) law of defamation. It is a statutory modification of the common law of defamation which has not applied in Queensland since prior to the introduction of the codification of defamation law in 1889. Consequently, following the commencement of the Defamation Act 1889 (Qld) on 1 January 2006, the law of defamation in Queensland consists of the common law of defamation as modified by the provisions of the Act. It is most important that this be understood. An overview of the Act will be given in the lecture.
  • No cause of action for defamation can arise … wha? I'm sorry. I didn't finish this sentence in my notes :/ Sorry.
  • s8 if something is said, and that defamatory material carries more than one defamatory imputation, then it is still one cause of action
  • Generally, cannot sue a corporation or company for defamation
  • s10 representative of a deceased person cannot sue in respect of a deceased person (arguments for and against this in explanatory notes)
  • NB: s 11 is. not. examinable.

P.S. I kind of miss negligence :/

Basic Liability Concepts

Defamatory matter

  • Defamatory imputations
    • A defamatory imputation must, as a question of law, be capable of being defamatory. If a defamatory imputation is capable of being defamatory as a question of law, then as a question of fact, it must bear a defamatory meaning. This will be explained further in the lecture.
    • NB: ‘Imputation’ means the act of attributing something (usually fault) to a person.
    • See sections 21 to 23 of the Defamation Act 2005 (Qld) regarding the role of the judiciary and the use of juries in civil defamation actions.
  • Attributing something (characteristic) to the plaintiff (usually false)
    • eg. dishonesty
  • This is for the judge to decide. A question of fact. Must be capable of being defamatory.
  • NB: There are jurists for civil matters (s 32 of Jury Act 1995)
  • General test for defamation/ defamatory matter: Radio 2UE Sydney Pty Ltd v Chesterton
    • Ray Chesterton was a sport journalist with the Daily Telegraph. Chesterton joined John Laws on his morning radio show on Radio 2UE. On the morning of 8 August 2005, Laws went off at Chesterton (called him ‘bombastic, beer-bellied buffoon’ among other things). This was Laws’ 70th birthday. On that day, Chesterton had referred to ‘seventy year old disk jockeys’.
  • Popular or false innuendo: Favell v Queensland Newspapers Pty Ltd
    • Suggest something happened? eg. that the owners burnt down their house
  • In Radio 2UE Sydney v Chesterton, the issues raised were:
    • [8] Whether there was a general test for the defamatory matter that applies to both person and professional/business reputation. One general test was the HCA’s conclusion.
    • Whether there is a separate test for true or legal innuendo.
      • Was not answered because of the answer to the first one.
    • Legal or true innuendo: something is published and those with special knowledge of the law or facts could pick up the defamation
      • Reputation in the context of defamation
      • [51]: True innuendo
    • Defamation is about damage to a person’s reputation. [Person has no idea how to be a wine merchant]
      • However, injurious falsehood is about damage to the business or goods of the person. [The wine’s horrible]
      • Lord Escher MR outlines the difference: if you say the wine is horrible, it is injurious falsehood. If you say the merchant is hopeless, that is defamation.
      • [14] Outlines the defamatory imputations, both personal and professional.
      • [51] for innuendo
      • [60] ‘The general test for defamation is relevant to all imputations which are said to have injured a plaintiff’ in some respect’.
      • [55]-[60]: The general test of defamatory matter, which is relevant to all imputations (personal and professional/business)
  • Something is defamatory if it is damaging to reputation in that it would make ordinary decent members of the community think less of the plaintiff in some respect. This is a statement of the general test for defamation at common law, applicable in Queensland as there is nothing in the Act concerning it.
  • Favell v Queensland Newspapers
    • [3] The plaintiff had committed the crime of arson etc. These are the imputations (popular/false innuendo)
    • [12] Last two sentences questions of facts are separate from questions of law. The question of law in this case was: ‘Is the article capable of being defamatory?’ Did it injure the plaintiff’s reputation.

Defamatory matter must refer to the plaintiff

  • There are two questions involved in the attempt to identify the plaintiff as the person defamed:
    • Question of law: Can the article, having regard to its language, be regarded as capable of referring to the plaintiff?
    • Question of fact: Does the article in fact lead reasonable people who know the plaintiff to the conclusion that it does refer to him or her?
  • What is relevant to deciding this:
    • The scope of the class;
    • Generality of the statement; and
    • The extravagance of the accusation.
  • Bjelke-Petersen v Warburton
    • Warburton was the leader of the opposition. Burns was the deputy leader. Recorded on ABC news one night that parliament had gotten very heated and statements were made that the ministers of government were corrupt (‘got their hands on the till’). Reference to former President Markos (corruption etc.)
    • Politicians can say whatever they like in parliament; however, Mr Burns/Warburton walked outside and repeated them to news crews. Did the defamation refer to the plaintiffs? Yes, because by saying ‘the government’ you clearly mean ‘the cabinet’ which is a sufficiently limited class.

Defamatory matter must be published

  • Byrne v Deane
    • There was a golf club, which had illegal poker machines. One day a member of the golf club (Byrne) reported it to the police. The police came and took the poker machine. Some other members of the clubs put up a sign for a couple of days. This sign suggested that he was disloyal to the club.
    • Issue: were the words capable of being defamatory.
    • Issue: publication?
    • There was publication by putting the notice since the golf club had complete control over what was up on the wall.
    • However, for the first issue … the courts said no. The words were not capable of being defamatory since what the notice let everyone know was that Byrne had reported criminal activity. Not. Defamatory. In the eyes of the law. BAHAHAHAHAHAHA just quietly. Aren’t the judges cute?
  • Urbanchich v Drummoyne Municipal Council
    • Transit authority control the bus shelters. A poster was put up by an unknown person in one with doctored pictures of some people wearing Nazi uniforms (including Mr Urbanchich). The posters were up for about a month. It took them awhile to get them down.
    • The court concluded that neither the council nor the transit had published the defamatory material.
    • It was held that the plaintiff must prove that the defendant consented to or approved of or adopted or in some way ratified the continued presence of the material.
    • This was not the case here. The dudes started the process of removing the material when they were notified. Therefore, the defendants had not published the material.
  • NB: Don’t worry about re-publication.