Overview and General Principles
In defamation law, the plaintiff must establish that the defamatory matter was published "of and concerning" them. This identification element is foundational; without it, no action in defamation can succeed regardless of how severe the defamatory imputations might be.
The identification requirement has been consistently affirmed in Australian common law. As Isaacs J stated in David Syme & Co v Canavan (1918) 25 CLR 234 at 238, if the plaintiff is not named, the test is: "Are [the words] such as reasonably, in the circumstances, would lead persons acquainted with the plaintiff to believe that he was the person referred to?" This formulation has been consistently reaffirmed, including by the High Court in Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575.
The test for identification is objective. Neither the publisher's intention nor the subjective understanding of every reader is determinative. Rather, the question is whether a reasonable person with knowledge of the relevant circumstances would understand the publication to refer to the plaintiff. Importantly, it is sufficient that some recipients of the publication would reasonably identify the plaintiff; it is not necessary that all recipients would do so.
Express or Direct Identification
Direct identification occurs when the plaintiff is unambiguously identified on the face of the publication. This most commonly occurs through:
Explicit naming of the plaintiff
Use of photographs or visual depictions recognizable as the plaintiff
Unique descriptors that can only apply to the plaintiff (e.g., "the Premier of Western Australia")
Specific details such as address, position, or title that effectively identify the plaintiff
In Charleston v News Group Newspapers Ltd [1995] 2 AC 65, Lord Bridge emphasized that when a plaintiff is directly named, the question of identification is straightforward. Similarly, in Morgan v Odhams Press Ltd [1971] 1 WLR 1239, it was established that a unique descriptor can be as effective as naming the individual outright.
For visual identification, the seminal Australian case Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443 confirmed that a recognizable photograph can constitute identification even without accompanying text naming the plaintiff. In Western Australia, this principle was applied in Jones v TVW Enterprises Ltd (unreported, Supreme Court of WA, 1997), where footage of the plaintiff on a television broadcast was sufficient for identification despite the plaintiff not being named.
The key practical question is whether the words or images would lead an ordinary reasonable reader to conclude that the plaintiff is the person being referred to. Where the identification is express, this element is readily satisfied without the need to introduce extrinsic evidence or special knowledge.
Implied or Indirect Identification (Innuendo)
Identification may also occur indirectly, where the publication does not explicitly name the plaintiff but contains sufficient information for readers with particular knowledge to identify them. This is traditionally known as identification by "innuendo" (or true innuendo).
In Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 at 89, Jordan CJ explained: "If the matter complained of does not refer by name to the person alleged to be defamed, the plaintiff must allege and prove... that persons to whom the matter was published had knowledge of special circumstances... which would lead them to believe that the [plaintiff] was the person referred to."
The Western Australian Supreme Court has consistently followed this approach, as in Wilson v West Australian Newspapers Ltd [2003] WASC 123, where a plaintiff was held to be identifiable through descriptive information, even though not named.
For indirect identification to succeed, the plaintiff must:
Plead the extrinsic facts known to recipients that would lead to identification
Prove that these facts were known to at least some of the audience
Establish that the combination of the publication and these extrinsic facts would reasonably lead to identification
Common scenarios of indirect identification include:
Publications referring to a person by occupation and location (e.g., "the principal of School X")
References to previous events or controversies associated with the plaintiff
Use of nicknames, pseudonyms, or initials known to identify the plaintiff
Descriptions detailed enough that, combined with community knowledge, point uniquely to the plaintiff
As Lord Atkinson noted in E Hulton & Co v Jones [1910] AC 20 at 24, which has been followed throughout Australia, "it is the duty of the jury to read the statement complained of as ordinary reasonable readers would read it, and say whether, in their opinion, by its true meaning and innuendo... it would lead sensible and reasonable people to the conclusion indicated." This principle has been consistently applied in Western Australian courts.
Irrelevance of Intention; Same Name and Mistaken Identity
A crucial principle in defamation law is that the publisher's intention is generally irrelevant to liability. If the publication is reasonably understood to refer to the plaintiff, it matters not that the publisher:
Had no intention to refer to the plaintiff
Did not know of the plaintiff's existence
Intended to refer to someone else
Thought they were referring to a fictional person
This principle was definitively established in E Hulton & Co v Jones [1910] AC 20 and embraced in Australia through Lee v Wilson & Mackinnon (1934) 51 CLR 276, where the High Court held that multiple officers named "Lee" could each sue for defamation if readers understood the publication to refer to them, despite the publisher having a different "Lee" in mind.
In Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632, the High Court reaffirmed that "it is no answer... to say that they did not intend to refer to the plaintiffs." This is particularly relevant in cases of mistaken identity or coincidental naming.
The principle applies equally in Western Australia. In Douglas v Western Australian Newspapers Ltd (unreported, Supreme Court of WA, 1998), the court held that a newspaper article that incorrectly attributed criminal behavior to the plaintiff when they intended to name someone else did not excuse liability - the test remained whether readers understood the publication to refer to the plaintiff.
Identification of Corporate Plaintiffs
Section 9 of the Defamation Act 2005 (WA) restricts the ability of corporations to sue for defamation. Only "excluded corporations" may bring an action, defined as:
Corporations that employ fewer than 10 persons and are not related to another corporation; or
Not-for-profit corporations.
For corporations that fall outside these categories, defamation remedies are not available regardless of how damaging a publication might be to their reputation.
For "excluded corporations" that can sue, the principles of identification apply similarly to individuals. The corporation must establish that the defamatory material would be understood by ordinary readers to refer to that specific entity.
Corporate identification typically occurs through:
Direct naming of the corporation or its registered business name
Use of trademarks, logos, or distinctive branding recognizable as the corporation
References to distinctive products or services exclusively associated with the corporation
Descriptions of unique business activities or locations that point specifically to the corporation
In Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, it was established that defamatory imputations about a product or service can identify the corporate producer of that product. Similarly, the Western Australian Supreme Court in Western Desert Lands Aboriginal Corporation v Doyle [2009] WASC 417 confirmed that references to distinctive corporate activities can constitute identification even without explicit naming.
Corporate plaintiffs face the additional hurdle of proving that the defamatory material refers to the corporation itself, rather than merely its directors, employees, or products. For example, in La Trobe Capital & Mortgage Corporation Ltd v Hay [2010] WASC 350, the court distinguished between criticism of a corporation's management (which may identify the corporation) and criticism of individuals within the corporation (which may not).
Group and Class Defamation
The general rule, derived from Knupffer v London Express Newspaper Ltd [1944] AC 116 and consistently applied in Australia, is that defamation of a group does not give rise to a cause of action for individual members unless the circumstances reasonably lead to the identification of the individual plaintiff.
Several factors influence whether a group reference can identify individual members:
Size of the group - smaller, more defined groups increase the likelihood of individual identification
Specificity of the allegation - whether the defamatory matter refers to "all" members or only "some" members
Relationship between group members - tightly connected groups may more readily support individual identification
Context of the publication - including whether visual cues or other context singles out individuals
In Pryke v Advertiser Newspapers Ltd (1984) 37 SASR 175, defamatory remarks about a small commission of four members were held to identify each individual commissioner. By contrast, in Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1, the High Court found that general statements about "Arab terrorists" could not identify individual Arab airlines.
Western Australian courts apply these principles with reference to context and common sense. In Mickelberg v 6PR Southern Cross Radio Pty Ltd [2007] WASC 140, statements about the "Mickelberg brothers" were held capable of identifying each individual brother due to the small, clearly defined nature of the group.
The critical question remains: would reasonable people understand the defamatory matter to refer to each individual member, or only to the group as an abstract entity? This requires careful case-by-case assessment of the publication's wording, context, and audience understanding.
Contextual Identification: Prior and Subsequent Publications
When evaluating identification, courts consider the state of knowledge reasonably available to the audience at the time of publication. This primarily includes:
Prior publications by the same publisher or others that help establish context
Public knowledge about the plaintiff relevant to the identification
Contemporaneous materials that would inform the audience's understanding
In John Fairfax Publications Pty Ltd v Obeid [2005] NSWCA 60, the NSW Court of Appeal confirmed that prior publications can provide the context that makes later references identifiable, particularly in continuing news coverage of a topic.
While subsequent publications generally cannot retroactively create identification where none existed initially, narrow exceptions exist:
Where a publisher creates a deliberate series intended to be read together
Where the subsequent publication explicitly references and clarifies the earlier one
Where the publications together form a single extended defamatory publication
In Ware v Associated Newspapers Ltd (1969) 90 WN (NSW) 180 and Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85, courts permitted consideration of later publications where they formed part of a planned sequence.
The Western Australian approach was demonstrated in West Australian Newspapers Ltd v Elliott [2008] WASCA 172, where the Court of Appeal held that a series of related articles could be considered together in determining identification when they were published as part of the same continuing coverage.
However, these exceptions are narrowly construed. The general rule remains that identification must be established based on information available to the audience at the time they encountered the publication.
Digital Media Considerations
The rise of digital and social media has created new challenges for the identification element. Courts have adapted traditional principles to address issues such as:
Screen names and pseudonyms - These can identify individuals if the connection between the online persona and the real person is known to the audience
Hyperlinked content - Information accessible via hyperlinks may sometimes be considered part of the context for identification
Closed online communities - Publications in private Facebook groups or messaging services may rely on shared knowledge unique to that community
Algorithmic delivery - The same content may reach different audiences with varying knowledge about the plaintiff
In Trkulja v Google LLC (2018) 263 CLR 149, the High Court recognized that internet search results could identify a plaintiff through the juxtaposition of names, images, and related content. Similarly, in Bolton v Stoltenberg [2020] NSWSC 1064, the court found that Facebook comments could identify individuals even without naming them, when contextual knowledge was present in the audience.
Western Australian courts have considered these issues in cases like Douglas v McLernon [2016] WASC 320, where identification was established through references on internet forums that, while not explicitly naming the plaintiff, contained sufficient information for regular forum participants to identify him.
Digital publications require careful analysis of:
The nature and composition of the audience
The platform-specific context and conventions
The information reasonably available to recipients at the time
The degree to which hyperlinked or related content forms part of the publication
Pleading and Proving Identification – Practical Guidance
Pleading Requirements
In Western Australian proceedings, identification must be properly pleaded in the statement of claim. The following components are essential:
Base allegation - A clear statement that "the publication was of and concerning the plaintiff"
Direct identification - Where applicable, simply stating that the plaintiff was named or visually depicted
Indirect identification - Where necessary, pleading:
The extrinsic facts known to recipients
How these facts, combined with the publication, identified the plaintiff
The class of recipients who possessed this knowledge
A proper pleading of indirect identification might state: "At the time of publication, the following facts were known to [specified class of recipients]: [list relevant facts]. By reason of these facts, the words [quote relevant portion] would be understood by those recipients to refer to the plaintiff."
Evidence of Identification
Evidence to establish identification may include:
Witness testimony from recipients who understood the publication to refer to the plaintiff
Evidence of prior publications that establish context
Evidence of the plaintiff's prominence or notability within the relevant community
Evidence of unique characteristics that match the publication's description
Expert evidence on industry-specific or technical descriptors that would identify the plaintiff
While the test is objective (what could reasonably be understood), evidence of actual identification by recipients can be persuasive.
Strategic Considerations
When analyzing identification issues, practitioners should consider:
Audience fragmentation - Different segments of the audience may have different knowledge about the plaintiff
Reasonable access to knowledge - Whether the extrinsic facts were sufficiently prevalent among the audience
Contextual ambiguity - Whether the publication could reasonably refer to persons other than the plaintiff
Intentional obfuscation - Whether the publisher attempted to disguise the reference to avoid liability
For corporate plaintiffs, establishing both standing under s 9 and identification are threshold requirements. For group defamation, careful analysis of the size and definition of the group is essential.
Conclusion
The identification element remains a fundamental prerequisite for any defamation action in Western Australia. While the principles are well-established, their application requires nuanced analysis of the specific publication, its context, and the reasonable understanding of its audience.
As defamation increasingly moves to digital platforms, courts continue to apply these traditional principles while adapting to new media contexts. The key question remains whether, in all the circumstances, the publication would be understood by reasonable recipients to refer to the plaintiff.
When in doubt, courts will insist on the plaintiff demonstrating a clear nexus between the defamatory material and themselves. Without this connection, no defamation action can succeed, regardless of how damaging the content might be. Effective pleading and proving of identification thus remains central to defamation practice in Western Australia.