In the world of defamation law, the defence of triviality has become an increasingly important topic as courts grapple with the question of whether or not certain instances of alleged defamation are too insignificant to warrant damages.
This blog post will provide a brief overview of the defence of triviality, with a focus on the case of Turtur AO v Connor [2021] SADC 127, and the relevant sections and cases that have contributed to the interpretation of this defence.
Section 33 of the Defamation Act 2005 (WA) establishes the defence of triviality, stating that it is a defence to the publication of defamatory matter if the defendant proves that the circumstances of the publication were such that the plaintiff was unlikely to sustain any harm.
This section mirrors similar provisions found in other Defamation Acts in other states and territories.
However, there is conflicting authority on the meaning of the words used in these sections.
The conflict lies in the interpretation of the phrase "any harm."
In Jones v Sutton (2004) 61 NSWLR 614, the court held that "not likely to cause harm" did not mean more probable than not, but required the absence of a real chance or possibility of harm. The debate continues on whether "any harm" refers solely to "harm to reputation" or whether it extends to "injury to feelings."
This issue remains unresolved.
In Turtur AO v Connor [2021] SADC 127, the Applicant argued for the broader interpretation of "any harm," including injury to feelings, citing that damages for defamation were awarded "because of" injury to reputation, not "for" damage to reputation.
The Respondent, on the other hand, submitted that the appropriate interpretation was the narrower one adopted by the majority of the Queensland Court of Appeal in Smith v Lucht [2016] QCA 267, confining "any harm" to reputational harm and not extending it to loss of feelings.
Ultimately, whether the defence of triviality is successful will depend on the circumstances of the publication and the potential harm it may cause.
Factors such as the extent of the publication, the reactions of others to the publication, and any evidence of damage to reputation may all be considered when determining if the defence applies.
Key take-aways
In conclusion, the defence of triviality remains an important aspect of defamation law, with courts continuing to wrestle with the appropriate interpretation of "any harm."
The case of Turtur AO v Connor [2021] SADC 127 serves as a prime example of this ongoing debate, and it will be interesting to see how future cases contribute to the development of this defence.
Cases referenced in this blog post:
Turtur AO v Connor [2021] SADC 127
Smith v Lucht [2016] QCA 267
Jones v Sutton (2004) 61 NSWLR 614