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.