“Words are, when used orally, sounds, and when used in writing, marks on paper or some other material. In some contexts words have significance independently of their meanings … If the question is whether a piece of paper was blank or not, the fact that a person observes marks on it is relevant even though the person cannot say what those marks, being words, are because of illiteracy. Words arranged in a montage could be part of a work of visual art even though they are in a language unknown to viewers. But outside contexts of this kind, the only significance of words lies in their meaning.”
— Gummow, Hayne and Heydon JJ in Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 (HCA) at [84].
The essentials
What is the test?
The plaintiff has to establish that the publication bears a ‘defamatory meaning’ (or ‘defamatory imputation’). There are two parts to this. First, the plaintiff has to establish that the publication would be understood by ordinary reasonable readers to bear a particular meaning (or meanings). Second, the plaintiff has to establish that the meaning is in fact ‘defamatory’ – or more precisely, that it has a ‘defamatory tendency’ (or ‘defamatory character’).
As with the element of identification, the publisher’s intention to convey a defamatory meaning is strictly irrelevant to the establishing of liability.
We’ll first deal with how the Courts determine a publication’s meaning.
We’ll then address how the Courts determine whether a particular meaning is defamatory.
How do the Courts determine meaning?
The Courts apply a collection of key principles of interpretation drawn from previous cases. We synthesise these principles as follows:
- The governing principle is reasonableness.
- The test is objective: under the circumstances in which the words were published, what would the hypothetical ordinary reasonable person understand by them?
- This person is taken to be one of ordinary intelligence, general knowledge and experience of worldly affairs. They do not live in an ‘ivory tower’. They are not naive, but nor are they unduly suspicious.
- The Court is not concerned with the literal meaning of the words, or the meaning which might be extracted on close analysis by a lawyer or linguist. What matters is the meaning which the hypothetical ordinary reasonable person would, as a matter of impression, carry away in their head after reading, viewing or hearing the publication.
- The meaning includes what the hypothetical person would reasonably infer from the publication. This person has considerable capacity for ‘reading between the lines’. What is more, this hypothetical person can draw an implication more readily than a lawyer or judge, and may indulge in a degree of ‘loose thinking’.
- The Court will reject any alleged meanings by the plaintiff that can only emerge as the product of a strained or forced interpretation, or from groundless speculation. This is because the hypothetical person is not avid for scandal, and they will not necessarily interpret a bad meaning when other non-defamatory meanings are available. In this respect, the Courts will usually consider—particularly when dealing with allegations of misconduct—what ‘tier’ of meaning the reasonable person would draw from a statement:
- A tier-one meaning conveys actual guilt: “When I came into the room I saw Louis punch Sally in the face.”
- A tier-two meaning conveys reasonable grounds to suspect guilt: “I heard a commotion in the other room. I went in and Sally was hunched over clutching her face. Louis saw me and ran off.“
- A tier-three meaning conveys grounds to investigate guilt: “Sally came to see me yesterday. She had a black eye. She wouldn’t tell me what happened. When I mentioned this to Louis later on, his eyes froze and he changed the subject. We need to look into this.”
- It is not enough just to say that some particular person might understand the words in a defamatory sense.
- The words complained of must be read in context, and as a whole. For example, if a headline, caption, pull quote or fact box of a newspaper article contained defamatory material, but the balance of the article neutralised the defamatory part, the publication as a whole might not be defamatory. The law provides that the negative content of a publication (i.e. the ‘bane’) must be read alongside any positive or neutralising content (the ‘antidote’). Similarly, a posting on a website forum, or a comment on a Facebook thread, must be viewed in light of the thread as a whole (and even sometimes, as part of a series of threads). Letters and emails normally needed to be viewed in light of the full chain of correspondence.
- In assessing the context of the words, the Courts will construe the words with appropriate regard to the mode of publication and the surrounding circumstances in which they appeared. Context is assessed by the timing, nature, extent and, importantly, the target audience of a publication. The publication will have to be viewed in light of the “public mind to which it is addressed”. For example, what is said during a speech at a business seminar will be treated more seriously than a speech at a 21st birthday party. And for some publications, the Court might reasonably take into account the “climate of public discussion” about a particular issue.
After considering a statement against these principles, the Court will be able to determine whether the meaning the plaintiff has alleged arises from the publication, does in fact arise (or, in the context of a pre-trial argument, is at least capable of arising).
How do the Courts determine whether a meaning is defamatory?
The word ‘defamatory’ is not defined in legislation. Parliament did so once upon a time, but the modern view is that gauging what amounts to a defamatory meaning is best left to the common law, which is more flexible and can accommodate changing social mores.
Fundamentally, for a meaning to be ‘defamatory’, it must bear an inherently injurious tendency (or character).
By far the most common test—derived from an English case in 1936—is whether the publication bears a meaning that would “tend to lower the plaintiff in the estimation of right-thinking people generally”.
We’ll break this down because each aspect of the test is important:
- ‘tend to’ – this is crucial. Defamation law has classically applied the ‘presumption of harm’ (or ‘presumption of damage’). By this, the law has not required plaintiffs to show that a statement caused them actual harm, just that the words were of a nature that would ‘tend to’ cause them reputational harm. In recent years, sharper focus has been brought to bear on this. Historically, almost any disparaging slur could be regarded as something that would ‘tend to’ cause reputational harm, with the level of harm being reflected purely in the amount of damages awarded: sometimes high damages, and sometimes as low as $1 or a penny. However, the law has increasingly recognised that not just any disparaging statement will meet the test. In order for an alleged meaning to tend to lower the plaintiff, the intrinsic harm of the statement must meet a modicum threshold of gravity. In New Zealand, the law is still being worked out as to whether this threshold is ‘serious harm’, or ‘substantial harm’ (slightly lower than ‘serious harm’), or perhaps something less than ‘substantial’ – perhaps ‘more than minor’. We’ll discuss this more closely on the next page under harm.
- lower the plaintiff – i.e. give an adverse view of the plaintiff.
- in the estimation of – we often now just say “in the eyes of”.
- right-thinking people – these are notional law-abiding members of society who hold values that accord with the general populace. As with the wrinkles of many legal tests, it was originally “right-thinking men”. Australia has now plumped for a “reasonable people” test rather than “right-thinking people” test, which seems sensible.
- generally – this emphasises that while some people might draw a more adverse view about an allegation than others (e.g. cohabiting), the law looks to whether the ‘general’ person would tend to form an adverse view.
A crude shorthand might simply be: “Is the statement likely to injure the plaintiff’s reputation in the eyes of ordinary people?“
Courts have also used other tests to define whether something is defamatory. One is whether the publication is “a false statement to the plaintiff’s discredit”. This is fine, as long as one keeps in mind that the plaintiff does not carry the burden of proof of the falsity of a statement. Rather, where the truth or falsity of a statement is at issue, the defendant carries the burden to prove that the statement to be true (or at least its factual basis).
Not all defamatory statements will be captured by a mere ‘lowering’ of a person’s reputation. In some cases, the Court will ask whether the statement “would tend to cause the plaintiff to be shunned or avoided”. This test is applied with statements that don’t necessarily impugn the plaintiff’s moral turpitude, but rather suggest generally undesirable things about them, which might harm their standing, lead them to be socially excluded, or cause people to lose confidence in them.
And finally there is also room for statements to be defamatory if they hold up a plaintiff to “ridicule“. Cases brought purely on this basis are rare.
What are some examples of defamatory meaning?
Courts have found all manner of defamatory meanings in statements, including claims that a plaintiff is a criminal, a crook, corrupt, a liar, a cheat, a fraudster, deceitful, dishonest, exploitative, hypocritical, lazy, incompetent, unfaithful, a paedophile, incestuous, immoral, disloyal, a coward, a drunkard, and a drug addict.
In our experience, most claims centre on allegations of dishonesty in some form. And many cases are also brought in response to allegations of professional ineptitude, and sexual misconduct.
However, one must always keep in mind that whether a statement bears a defamatory meaning will depend on the context in which it is said. A particular allegation might be found to bear a defamatory meaning in one case, but not necessarily in another.
Also, you might remember from our FAQs that the law draws a line between statements that bear defamatory meanings, and those that are simply ‘vulgar abuse’.
Can defamatory meanings arise by implication?
Yes. If a defamatory meaning can be drawn reasonably from a statement, there’s no difference whether the accusation was said or written directly, or was merely implied, or where direct allegations were left unsaid but readers were left to connect the dots. A good example of readers being left to connect the dots is this New Zealand Herald article.
In addition, a defamatory meaning might be inferred by contextual elements of a statement, especially where interpreted to be sarcastic, ironic, or mischievous.
Certain punctuation might lend to a defamatory meaning:
- Oh, yes, I’m sure Sally can be trusted with that money…
- $50 is missing from the till. Perhaps Sally has made another “mistake”.
As, too, emoticons (rather old-hat now):
- Yeah, I saw them leave together. All I can say is: Sally is not his wife ; – )
And of course emojis:
- Goodness me. Just two months together and Sally’s already encouraging Grandad to update his will ??????????
Can humour or satire be defamatory?
Yes, but for the defamation lawyer it’s unfortunately difficult to gauge when a supposed joke might be considered just innocuous banter, and when it crosses the line so as communicate a defamatory meaning. Cartoons are especially difficult to advise upon.
Can a claim be brought where certain readers infer a defamatory meaning even though most people wouldn’t infer the particular meaning?
Yes. This is quite complicated.
A plaintiff might allege that the defamatory meaning sued upon arises as either a ‘natural and ordinary meaning’ or an ‘innuendo meaning’.
Most defamation claims are based on natural and ordinary meanings. These will arise where the defamatory meaning is self-evident. For example, “Louis is a corrupt police officer.” This means what it says: that Louis is a corrupt police officer. But a natural and ordinary meaning might also arise as a natural implication. For example, “Louis is a cop who will turn a blind eye for the right price”. Readers will also surely understand this to mean that Louis is a corrupt police officer. However, a meaning might arise by natural implication in a less direct way. For example, “Sally obtained a non-contact order against Louis“. Readers will likely understand this to mean that Louis has behaved in a bad and probably violent way towards Sally.
If the plaintiff claims that the words are defamatory in their natural and ordinary meaning, no evidence may be led as to their interpretation. That is, neither the plaintiff nor the defendant can call evidence from people who read the impugned publication, to give evidence of how they interpreted the words. In cases dealing with alleged natural and ordinary meaning, the Court must determine simply whether the alleged meaning arises fairly from the publication, calling on the principles of interpretation discussed earlier.By contrast, if the plaintiff claims that the words are defamatory by innuendo, the focus is not how the publication would have been interpreted by ordinary people, but rather how the publication would have been interpreted by a certain class of people in possession of additional facts; people with some ‘inside information’. For example: “On Friday, Louis was seen entering 42 Collins Street. He was there for 10 minutes.” In its natural ordinary meaning, that can’t be defamatory. But if certain readers know that 42 Collins Street is a meth house, the statement takes on a more sinister meaning. In such cases, the parties may adduce evidence as to the additional facts alleged to be known by certain readers. The Court must still assess whether the meaning arises fairly from the publication—an objective test—but can do in light of any additional facts proven to be known to this special class of reader.
Similarly, if a particular word or phrase would be known by some readers to bear a special meaning—whether by slang or a technical definition—then that too can amount to an actionable innuendo meaning. For example, imagine there is a notorious 7-foot burglar named Virgil MacDougall, who is convicted in Dunedin. A colloquialism crops up in North Dunedin, whereby students and lecturers begin calling thieves “Big Macs”. Tommy Jones, a student, has his laptop stolen. He tweets: “Laptop gone. Harold Smith = Gonna get you Big Mac. Damn you.” To ordinary reasonable readers, such as Tommy’s Twitter followers in his hometown of Whakatāne—who aren’t aware of Dunedin’s ‘Big Mac’ colloquialism—the post reads confusingly: Is Tommy begrudgingly noting that he owes a guy called Harold Smith dinner at McDonalds for selling his computer? But to Tommy’s North Dunedin followers, who are aware of the colloquialism, the tweet might be understood as an allegation of theft against Harold.
The word ‘innuendo’ itself has a special meaning under defamation law. In ordinary parlance, an ‘innuendo’ is an oblique hint, from which a meaning may arise by natural implication. But of course, if a meaning arises by natural implication, the reader does not need to be in possession of any additional facts to draw the defamatory meaning. So under the law, meanings arising in this normal sense of the word ‘innuendo’ in fact arise as natural and ordinary meanings.
The law has sought to deal with this ambiguity by describing a meaning that arises by natural implication as a ‘false innuendo’ (or ‘popular innuendo’). This signifies that the implication alleged is not an innuendo that permits additional evidence, but rather an innuendo in the popular sense of the word. By contrast, where an actual ‘innuendo’ meaning is concerned—where additional facts may be adduced in evidence—the law describes this a ‘true innuendo’ (or ‘legal innuendo’ – and sometimes even a ‘genuine innuendo’).
What are the different roles between the judge and the jury when determining meaning?
In a case that is heard by a jury, the judge’s role is to determine, as a question of law, whether the publication complained of could bear (or is capable of bearing) the meaning alleged; while the Jury’s role is to determine, as a question of fact, whether indeed the publication complained of does bear the meaning alleged.