Mitigation in Defamation: Understanding the Scope of Admissible Evidence

In defamation cases, the concept of mitigation refers to a legal strategy that aims to reduce the amount of damages awarded to the plaintiff.

In this blog post, I discuss the scope of evidence admissible at trial for mitigation in defamation cases.

This discussion is informed by the Western Australian court decision in Rayney v Reynolds (No 4) [2022] WASC 360.

The Necessity of Pleading Mitigation

To rely on mitigation as a defence in a defamation case, the defendant must specifically plead it. This is to ensure that both parties are aware of the arguments being raised and can prepare their cases accordingly, in line with the Rules of the Supreme Court 1971 (WA).

Failure to plead mitigation prevents a defendant from adducing evidence in support of their mitigation argument (Rayney v Reynolds (No 4) [2022] WASC 360, [36]).

Admissibility of Evidence in Defamation Cases

When it comes to the admissibility of evidence in defamation cases, courts consider various factors.

Section 34 of the Defamation Act requires the court to ensure there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.

Evidence of the plaintiff's actual harm to their reputation is relevant and admissible (Rayney v Reynolds (No 4) [2022] WASC 360, [37]).

Evidence in reduction of damages can be admitted on two bases: first, if it demonstrates the plaintiff's bad reputation; and secondly, if it is properly before the court on some other issue (Rayney v Reynolds (No 4) [2022] WASC 360, [39]).

However, evidence of specific acts of misconduct is inadmissible (Scott v Sampson). The rationale behind this exclusionary rule is pragmatism and fairness.

The Court of Appeal in the United Kingdom held in Burstein v Times Newspapers Ltd that evidence of 'directly relevant background context' is admissible in mitigation of damage in a defamation action. In Turner v News Group Newspapers Ltd, the court provided further clarification on the admissibility of evidence, stating that:

1. The exclusionary rule in Scott has never been absolute.

2. A plaintiff cannot generally be subjected to a roving inquiry into aspects of their life unconnected with the subject matter of the alleged defamation.

3. Evidence of matters directly relevant to the alleged defamation can be considered when assessing damages.

4. Such evidence must relate to 'the relevant sector of the plaintiff's life', meaning the sector of the plaintiff's reputation with which the imputations relied on by the plaintiff were concerned.

Determining the Relevant Sector

To determine the relevant sector, the court must consider the defamatory material and its context, as well as the terms of the imputations pleaded (Rayney v Reynolds (No 4) [2022] WASC 360, [43]).

The extent of admissible evidence relating to the plaintiff's conduct is primarily limited to activities that can be causally connected to the publication of the libel of which the plaintiff complains (Gatley on Libel and Slander).

Key take-aways

• Understanding the scope of admissible evidence for mitigation in defamation cases is essential for both plaintiffs and defendants.

• The key takeaway is that evidence must be directly relevant to the alleged defamation and must pertain to the relevant sector of the plaintiff's life.

• This ensures that the court can accurately assess damages and strike a balance between the interests of both parties.

Cases mentioned in this blog post:

• Rayney v Reynolds (No 4) [2022] WASC 360

• Turner v News Group Newspapers Ltd [2006] 1 WLR 3469

• Burstein v Times Newspapers Ltd [2001] 1 WLR 579

• Scott v Sampson (1882) 8 QBD 491

Understanding the Relationship Between Damages and Relevant Harm in Defamation Cases

Defamation law aims to protect an individual's reputation from false and damaging statements made against them. A key aspect of defamation cases is the award of damages to compensate the plaintiff for the harm they have suffered as a result of the defamatory statement.

In this blog post, I explore the nature and extent of the relationship between damages and the relevant harm in defamation cases.

Three Purposes of Damages

In Cerutti v Crestside Pty Ltd [2014] QCA 33, the court outlined three purposes of awarding damages in defamation cases: reparation, consolation, and vindication.

Reparation compensates the plaintiff for harm to their personal and business reputation, while consolation addresses the personal distress and hurt caused by the publication.

Vindication serves to restore the plaintiff's reputation in the eyes of the public.

These three purposes often overlap in reality, with a single amount awarded to cover all three.

Harm Sustained by the Plaintiff

Section 34 of the Defamation Act 2005 (WA) requires that there be "an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded."

As explained in Roberts and McHugh J's remarks in discussing "harm" in s 46 of the Defamation Act 1974 (NSW), this includes matters such as damage to reputation, hurt feelings, distress, humiliation, and other emotional impacts.

Damages for the failure to apologize are also considered damages for relevant harm.

Harm to Reputation

As Windeyer J noted in Uren v John Fairfax & Sons Pty Ltd, a person defamed receives damages for being injured in their reputation, rather than for the damage to their reputation itself.

This principle has been followed and applied in various cases.

Proving Harm

In defamation cases, it is not necessary for the plaintiff to provide specific evidence of harm, such as witnesses stating that their opinion of the plaintiff has changed.

In McCarey v Associated Newspapers Ltd (No 2), the court noted that some harm to reputation could be inferred based on the nature of the defamation and the extent of publication.

Presumption of Damage

The common law of libel presumes damage when defamatory words are published.

In Bristow v Adams, Basten JA analyzed authorities supporting this presumption, which exists in Australian law.

Consolation and Vindication

Awards for consolation should provide solace for the injured feelings of the plaintiff, including hurt, anxiety, loss of self-esteem, and indignity.

Vindication, on the other hand, focuses on signaling to the public that the plaintiff's reputation has been restored.

Key take-aways

• The award of damages in defamation cases serves multiple purposes, addressing the harm suffered by the plaintiff and working to repair, console, and vindicate their reputation.

• Understanding the relationship between damages and the relevant harm is essential in ensuring that defamation awards appropriately compensate plaintiffs and restore their damaged reputations.

Cases mentioned in this blog post:

• Cerutti v Crestside Pty Ltd [2014] QCA 33

• Roberts v Prendergast [2013] QCA 47

• Bristow v Adams [2012] NSWCA 166

• Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 ; [1966] HCA 40

• McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86

Proving the Act of Publication for Defamatory Material on the Internet

The internet has revolutionised the way we communicate, making the sharing of information easier and faster than ever. However, this ease of sharing has also led to an increase in instances of defamation.

Defamation law in Western Australia has evolved to address these concerns, and proving the act of publication for defamatory material online has become a critical aspect of defamation cases.

In this blog post, I discuss the requirements for proving publication of defamatory material on the internet, with reference to the recent decision of Woolf v Brandt [2022] NSWDC 623.

Proving Publication

In the case of defamation claims relating to material posted online, Australian courts have generally adopted a consistent approach regarding the proof of publication.

According to Sims v Jooste (No 2) [2016] WASCA 83 at [19], a plaintiff must plead and prove that the material complained of had been downloaded and viewed by somebody.

However, the plaintiff does not necessarily need to provide particulars of the identity of the person or persons who downloaded the material.

Drawing Inferences from a Platform of Facts

The courts have acknowledged that an inference to the effect that the material complained of has been downloaded by somebody might be drawn from a combination of facts.

Such facts may include the number of 'hits' on the site where the allegedly defamatory material was posted and the period of time over which the material was posted on the internet (Sims v Jooste (No 2) [2016] WASCA 83 at [19]).

This approach of relying on a "platform of facts" has been endorsed in Stoltenberg v Bolton [2020] NSWCA 45 at [33].

Particulars of Downloading

In cases predating the internet, courts required plaintiffs to specify the names of persons to whom allegedly defamatory material was published (Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188; Williams v Radio 2UE Sydney, Supreme Court of New South Wales, Levine J, 3 December 1993).

However, with the advent of the computer age, providing particulars of downloading, such as the names of the persons who downloaded the material, has become general practice (Cronau v Nelson [2018] NSWSC 1769 at [11] –[14]; Stoltenberg v Bolton at [55] –[56]).

The court in Newman v Whittington [2022] NSWSC 249 emphasized that it is not sufficient for a plaintiff to merely assert that the publication being on the internet must have been seen by someone.

Key take-aways

• Proving the act of publication for defamatory material on the internet is a crucial element of defamation cases in Western Australia.

• To establish publication, a plaintiff must demonstrate that the material complained of has been downloaded and viewed by at least one person.

• Courts may draw inferences from a combination of facts, such as the number of hits on a site and the duration the material was available online.

• Providing particulars of downloading, such as the names of persons who downloaded the material, is now general practice.

Cases mentioned in this blog post:

1. Woolf v Brandt [2022] NSWDC 623

2. Sims v Jooste (No 2) [2016] WASCA 83

3. Stoltenberg v Bolton [2020] NSWCA 45

4. Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188

5. Williams v Radio 2UE Sydney, Supreme Court of New South Wales, Levine J, 3 December 1993

6. Cronau v Nelson [2018] NSWSC

7. Newman v Whittington [2022] NSWSC 249

Understanding the Honest Opinion Defence in Defamation Law

Defamation law is designed to protect individuals from the harm caused by false statements about their reputation. However, the law also recognizes that freedom of expression is essential in a democratic society, and as such, there are certain defences that may be available to a person accused of defamation.

One such defence is the honest opinion defence, which allows for the expression of opinions on matters of public interest, provided they meet certain requirements.

In this blog post, I examine the elements of the honest opinion defence, drawing on the recent case of Kumova v Davison (No 2) [2023] FCA 1 and other relevant cases.

Elements of the Honest Opinion Defence

According to the Defamation Act and common law principles, as articulated in cases such as Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15 and Dutton v Bazzi [2021] FCA 1474, the honest opinion defence requires the defendant to establish the following:

1. The matter would have been understood by the ordinary reasonable reader to be an expression of the defendant's opinion (s 31(1)(a)).

2. The defendant's opinion related to a matter of public interest (s 31(1)(b)).

3. The defendant's opinion was based on proper material (s 31(1)(c)), meaning that: (a) the opinion was based on facts stated or sufficiently referred to in the relevant matter; (b) all such facts were substantially true at the time of publication; and (c) there was a sufficient rational connection between such facts proved to be true and the opinion.

Expression of Opinion

In determining whether a matter constitutes an opinion or a statement of fact, the court assumes the perspective of the ordinary reasonable person.

An opinion is generally seen as a conclusion, judgment, or observation, and is often based on stated facts.

The distinction between fact and opinion is not always clear-cut and may require careful analysis by the court, as seen in cases like Molan v Dailymail.com Australia Pty Ltd [2022] FCA 1004 and John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164.

Matter of Public Interest

An opinion must relate to a matter of public interest in order to qualify for the honest opinion defence. This element ensures that the defence does not apply to purely private matters or disputes.

Based on Proper Material

The opinion must be based on proper material, meaning that it should be grounded in facts that are stated or sufficiently referred to in the matter, substantially true at the time of publication, and have a rational connection to the opinion.

This requirement ensures that opinions are not based on false or irrelevant information, and that there is a justifiable basis for the opinion.

Key take-aways

• The honest opinion defence in defamation law seeks to balance the protection of individual reputations with the freedom of expression by allowing for the expression of opinions on matters of public interest, provided they meet certain criteria.

• Understanding these elements and their application in cases like Kumova v Davison (No 2) [2023] FCA 1, Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15, Dutton v Bazzi [2021] FCA 1474, Molan v Dailymail.com Australia Pty Ltd [2022] FCA 1004, and John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164 is essential for defamation lawyers and their clients when considering the honest opinion defence.

Cases referred to in this blog:

The cases mentioned in the blog post, listed in reverse date order, are as follows:

• Kumova v Davison (No 2) [2023] FCA 1

• Molan v Dailymail.com Australia Pty Ltd [2022] FCA 1004

• Dutton v Bazzi [2021] FCA 1474

• Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15

• John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164

Interlocutory Injunctions in Defamation Cases: A Delicate Balance

As a defamation lawyer in Western Australia, I often receive inquiries about the possibility of obtaining interlocutory injunctions in defamation cases.

This article provides a general overview of the principles governing the Federal Court's power to grant interlocutory relief in defamation cases, as discussed in the recent decision of Russell v S3@Raw Pty Ltd [2023] FCA 305.

Interlocutory injunctions are temporary orders granted by a court to restrain certain actions, such as the publication of defamatory material, until the final determination of a case.

The Federal Court has the statutory power to grant such relief under section 23 of the Federal Court of Australia Act 1976 (Cth). However, as a matter of discretion, this power is exercised with great caution and only in very clear cases (Australian Broadcasting Corporation v O'Neill [2006] HCA 46).

There are three key factors that a court will consider when deciding whether to grant an interlocutory injunction in a defamation case:

1. Whether there is a serious question to be tried as to the plaintiff's entitlement to relief;

2. Whether the plaintiff is likely to suffer injury for which damages will not be an adequate remedy; and

3. Whether the balance of convenience favours the granting of an injunction (O'Neill [2006] HCA 46).

The importance of freedom of speech is a key factor when considering these principles. Courts must take proper account of the public interest in free communication of opinion and information (O'Neill [2006] HCA 46 at [30]).

The balance of convenience requires the consideration of various factors favouring or militating against the granting of an injunction, including the strength of the plaintiff's claim (School for Excellence Pty Ltd v Trendy Rhino Pty Ltd [2018] VSC 514 at [34]). Dixon J in Trendy Rhino also noted that interlocutory injunctions in defamation cases will be refused if the publication is merely arguably defamatory, in recognition of the importance of free speech (at [37]).

There are, however, exceptional circumstances in which injunctive relief may be granted, such as when defendants display a vendetta-like behaviour or show a disinclination to conform to anticipated findings of the court (Trendy Rhino at [52]–[53]). In Webster v Brewer [2020] FCA 622, interlocutory relief was granted in relation to "vile" publications, and in Tribe v Simons [2021] FCA 930, relief was granted for "very serious" allegations with evidence of repeated publication after the commencement of the proceeding.

In Russell v S3@Raw Pty Ltd [2023] FCA 305, the court ultimately dismissed the interlocutory application, finding that the defamation complained of did not warrant the granting of an interlocutory injunction. The case demonstrates the delicate balance that must be struck between the protection of an individual's reputation and the importance of freedom of speech.

Cases referred to in this blog post:

• Russell v S3@Raw Pty Ltd [2023] FCA 305

• Webster v Brewer [2020] FCA 622

• Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46

• School for Excellence Pty Ltd v Trendy Rhino Pty Ltd [2018] VSC 514

• Tribe v Simons [2021] FCA 930

Pleading a Justification Defence in Defamation Cases: Key Principles

In defamation cases, a justification defence is raised when the defendant claims that the defamatory imputations carried by the published matter are substantially true.

In this blog post, I discuss the principles required to plead a justification defence in defamation cases, as set out in the recent case of Schiff v Nine Network Australia Pty Ltd (No 3) [2023] FCA 336 (following on from Wigney J in Rush v Nationwide News Pty Ltd and the Full Court in Australian Broadcasting Corporation v Chau Chak Wing).

It is important to note that although the cases discussed in this blog post were decided in a different state and in the Federal Court, the principles applicable to pleading a justification defence in defamation cases remain consistent across jurisdictions due to the Uniform Defamation Laws in Australia.

These laws were introduced to harmonise defamation legislation across the country, ensuring that the same principles and standards apply to defamation cases regardless of the state or court in which they are brought.

Therefore, as a defamation lawyer in Western Australia, the principles outlined in this blog post will be applicable and useful when dealing with defamation cases in our state as well.

The justification (or truth) defence

The defence of justification is set out in the various Uniform Defamation Acts, stating that it is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter are substantially true.

"Substantially true" is defined in s 4 as meaning "true in substance or not materially different from the truth."

Principles for Pleading a Justification Defence

1. Striking out pleadings: The power to strike out pleadings or portions of pleadings that do not disclose a reasonable cause of action or defence should be used sparingly and only in clear cases, to avoid depriving a party of a case they should be able to bring.

2. Particularity: Rule 16.41 of the Federal Court Rules 2011 (Cth) requires parties to state the necessary particulars of each claim, defence or other matter pleaded. The degree of particularity depends on the case's circumstances and the nature of the allegations.

3. Proof of truth: The particulars provided in support of a justification defence must be capable of proving the truth of the defamatory meaning sought to be justified. The court must determine whether the particulars provided, taken at their highest, can prove the truth of the defamatory imputations.

4. Specificity and precision: The particulars provided must be specific and precise enough to enable the claimant to understand the case they must meet. The defendant must specify the particulars of truth relied on with the same precision as an indictment, ensuring the plaintiff has sufficient notice of the allegations against them.

5. Proving substantial truth: To prove the substantial truth of an imputation, it is necessary to prove that every material part of the imputation is true. However, this does not mean that the defendant must prove the truth of every detail of the words established as defamatory, but rather meet the sting of the defamation.

6. No fishing expeditions: A defendant who pleads justification must do so based on the information they possess when the defence is delivered and cannot undertake a fishing expedition in hopes of finding supporting evidence.

7. Pleading conditions of mind: Rule 16.43 requires that a party who pleads a condition of mind (including knowledge and any fraudulent intention) must state the particulars of the facts on which they rely. For example, the publication might have alleged the plaintiff ‘knowingly’ received stolen property when they bought a new car off Gumtree.

Key take-aways

• When pleading a justification defence in defamation cases, it is crucial to adhere to the principles established in the caselaw.

• Doing so will ensure that the defendant has a solid foundation for their defence, while also providing the plaintiff with sufficient notice of the allegations against them.

Cases referred to in this blog post:

• Schiff v Nine Network Australia Pty Ltd (No 3) [2023] FCA 336

• Rush v Nationwide News Pty Ltd [2018] FCA 357; (2018) 359 ALR 473

• Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; (2019) 271 FCR 632

Understanding the Act of Publication in Defamation Law

A fundamental aspect of defamation is the act of publication, which is when the defamatory material is made available to a third party.

In this blog post, I discuss the principles of publication in defamation law, drawing upon the recent decision of Google LLC v Defteros [2022] HCA 27 and other key cases.

Publication of Defamatory Matter – Principles

The law surrounding publication in defamation is considered "tolerably clear" (Trkulja v Google LLC).

The principles relating to the publication of defamatory matter were first established in Webb v Bloch and later affirmed by the High Court of Australia in Fairfax Media Publications Pty Ltd v Voller.

Intentionality in Publication

In the Voller case, the Court examined the requirement of the common law of defamation that the publication of defamatory matter must be “intentional”.

The Court held that all that is required for intentionality, is that the defendant's act of participation in the publication be voluntary.

Publication and Liability as a Publisher

The majority in Voller further explored what the law requires for there to be a publication and for a person to be liable as a publisher.

Publication is described as the actionable wrong in defamation, by which harm is caused to a person's reputation.

It is a technical term, referring to a bilateral act where the publisher makes the defamatory material available and a third party has it available for their comprehension.

Publication can also be understood as the process by which a defamatory statement or imputation is conveyed.

Following the principles in Webb v Bloch, any act of participation in the communication of defamatory matter to a third party is sufficient to make a defendant a publisher, regardless of their knowledge.

This means that a person who has been instrumental in, or contributes to any extent to, the publication of defamatory matter is considered a publisher.

Key take-aways

• The act of publication is a critical element in defamation law.

• The principles of publication established in Webb v Bloch and affirmed in Voller provide guidance on what is required for a person to be liable as a publisher.

• Understanding these principles is essential for defamation lawyers and anyone seeking to navigate this complex area of law.

Cases referred to in this blog post:

1. Google LLC v Defteros [2022] HCA 27

2. Trkulja v Google LLC [2018] HCA 25

3. Webb v Bloch (1928) 41 CLR 331

4. Fairfax Media Publications Pty Ltd v Voller (2021) 95 ALJR 767; 392 ALR 540

Understanding the Tort of Injurious Falsehood

Injurious falsehood is a unique and distinct tort that protects businesses and individuals from the harmful effects of false statements.

Although often confused with defamation, it is important to recognize the key differences between these two legal concepts.

This blog post is about the nature and elements of the tort of injurious falsehood, drawing upon a recent decision, Jay & Anor v Petrikas & Ors (No 4) [2022] NSWDC 628, and other relevant case law.

Nature and Elements of Injurious Falsehood

According to Gummow J in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388, the tort of injurious falsehood has four elements:

1. A false statement of or concerning the plaintiff’s goods or business;

2. Publication of that statement by the defendant to a third person;

3. Malice on the part of the defendant; and

4. Proof by the plaintiff of actual damage suffered as a result of the statement.

It is crucial to note the key differences between injurious falsehood and defamation.

While defamation focuses on the protection of personal reputation, injurious falsehood protects proprietary and commercial interests.

As a result, a plaintiff must establish falsity, malice, and special damage in an injurious falsehood claim, unlike in defamation cases.

History and Development

The tort of injurious falsehood has its roots in actions for slander of title, where false statements cast doubt on the plaintiff's ownership of land, preventing them from leasing or selling the property.

This action expanded over time until it reached its modern form, covering falsehoods that cause actual damage when maliciously published.

The tort now includes various types of malicious falsehoods, such as slander of title and slander of goods, although it is not limited to these categories.

Relationship with the tort of deceit

Injurious falsehood shares similarities with the tort of deceit, as both involve false statements causing harm.

However, deceit focuses on false statements made to the plaintiff, while injurious falsehood concerns false statements made about the plaintiff to third parties.

Determining Injurious Falsehood at Trial: Key Questions for Judges

A judge must carefully examine the evidence and make determinations on several critical issues.

Drawing from the case of Jay & Anor v Petrikas & Ors (No 4) [2022] NSWDC 628, the following questions serve as a guide for judges when assessing the merits of an injurious falsehood claim:

1. Representations: The judge must first determine whether each of the publications in question conveyed certain representations. This involves assessing the content of the publications to establish if any false statements were made.

2. Connection to the plaintiff: Next, the judge must decide whether the representation(s) were of and concerning the plaintiffs (or either of them) in connection with their 'business.' This ensures that the false statements made in the publications relate to the plaintiffs and their commercial interests.

3. Falsity: If the representation(s) concern the plaintiffs and their business, the judge must then establish whether the representations were false. This step requires evaluating the truthfulness of the statements made in the publications.

4. Malice: If the representations are found to be false, the judge must determine whether the defendants published the publications (attributed to them) with malice. This involves examining the defendants' intentions and motives when making the false statements.

5. Actual damage: The judge must then decide whether the plaintiffs (or either of them) suffered actual damage as a result of the publications. This step requires an assessment of the harm caused to the plaintiffs' business or commercial interests due to the false statements.

6. Quantum of damages and additional awards: Finally, if actual damage is established, the judge must determine:

   1. The quantum of actual damage, which refers to the monetary value of the harm caused to the plaintiffs;

   2. Whether the plaintiffs (or either of them) are entitled to aggravated damages and/or exemplary damages. If they are, the judge must determine the quantum of either or both of such awards. Aggravated damages compensate for additional harm caused by the defendant's conduct, while exemplary damages serve to punish the defendant and deter similar behaviour in the future.

Key take-aways

• The tort of injurious falsehood is a distinct and important area of law that protects businesses and individuals from the damaging effects of false statements.

• Its unique elements and historical development set it apart from defamation.

Cases referred to in this blog post:

• Jay & Anor v Petrikas & Ors (No 4) [2022] NSWDC 628

• Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388

The Grapevine Effect and Defamation in the Age of Social Media

The 'grapevine effect' is a concept that has gained significant importance in defamation law, particularly with the rapid rise of social media.

This term is used to describe how defamatory material may be repeated or republished to others, causing damage to a much wider audience than initially intended.

In this blog post, I discuss the grapevine effect in the context of defamation law and examine some recent cases that have dealt with this issue.

The Grapevine Effect Explained

As noted in the recent case of Hockings v Lynch & Adams [2022] QDC 127, the grapevine effect has been used as a metaphor to help explain the basis on which general damages may be recovered in defamation actions.

The real damage caused by defamatory material cannot be ascertained and established, as it is impossible to track the scandal or determine the extent to which the poison may reach.

The grapevine effect provides a means by which a court may conclude that a given result was "natural and probable," depending on factors such as the nature of the false statement and the circumstances of its publication.

However, the grapevine effect does not operate in all cases, and republication is not always the "natural and probable" result of the original publication.

The Grapevine Effect and Social Media

The grapevine effect is particularly relevant in the context of social media, where defamatory material can spread rapidly and might emerge from its hiding place at some future date.

As observed in Hockings v Lynch & Adams, courts must be conscious that an award of damages needs to be sufficient to convince a bystander, who later learns of a slur through the grapevine, of the baselessness of the charge.

Case Examples

In O'Reilly v Edgar, the court accepted evidence that at least 1,000 members of the public group had downloaded and read defamatory posts, providing the foundation for a finding of wide publication.

In contrast, the case of Bolton v Stoltenberg relied on evidence of the 'reach' of a website in question and 'likes, comments, and shares' of defamatory posts, which the court used to infer that the material had been downloaded and read by a significant number of people.

Hockings v Lynch & Adams: A Closer Look

In Hockings v Lynch & Adams, the court found that in respect of certain occasions, posts were published beyond the admitted scope of publication due to factors such as the number of members in relevant Facebook groups and the overlap between groups.

However, the court also found that in other instances, publication was no greater than to those who were friends or followers of the pages in question.

Key take-aways

• The grapevine effect has significant implications in defamation law, especially in the context of social media.

• Courts must carefully consider the nature and extent of publication and republication in determining damages.

• As social media continues to evolve, it will be interesting to see how courts adapt to the changing landscape and deal with the grapevine effect in future cases.

Cases

In the blog post above, the following cases are mentioned:

1. Hockings v Lynch & Adams [2022] QDC 127

2. O'Reilly v Edgar [2019] NSWDC 374

3. Bolton v Stoltenberg [2018] NSWSC 1518

Understanding the concept of 'Vulgar Abuse' in defamation

With the proliferation of online communications and social media, the distinction between mere vulgar abuse and defamation has become increasingly important.

This blog post explores the concept of ‘vulgar abuse’ and the challenges that arise when assessing whether language damages a person's reputation.

The Concept of Vulgar Abuse

Vulgar abuse refers to language that is insulting or offensive but does not necessarily amount to defamation.

In order to distinguish between mere vulgar abuse and defamatory language, the context in which the terms are used must be considered, as well as the potential meanings conveyed by the language.

It is important to note that mere vulgar abuse, while offensive, does not inherently convey false statements that injure an individual's reputation.

Why Mere Vulgar Abuse is Not Defamatory

The primary reason mere vulgar abuse is not considered defamatory lies in its inability to cause significant harm to an individual's reputation.

While vulgar abuse may be offensive and hurtful, it often does not involve false statements about a person or their character.

Defamation, on the other hand, necessitates the communication of false information that damages a person's reputation in the eyes of others.

Moreover, vulgar abuse is often recognized as a form of emotional expression, rather than an assertion of fact.

For instance, the use of swear words or derogatory language may simply reflect the speaker's frustration or anger, rather than representing a meaningful claim about the targeted individual.

This emotional context can limit the extent to which vulgar abuse impacts a person's reputation, as right-thinking members of society may recognise it as an expression of emotion rather than a factual statement.

Challenges in Assessing Damage to Reputation

One of the main challenges in distinguishing between mere vulgar abuse and defamation is determining whether the language used has the potential to damage a person's reputation.

This can be particularly difficult in the context of social media and online communications, where the use of vulgar language and insults has become increasingly common.

The basic concepts are that:

• In order to assess whether language is defamatory or merely vulgar abuse, courts must carefully examine the context in which the words are used and the potential meanings that may arise.

• The presence of swear words or derogatory terms does not automatically preclude the possibility of defamation, as demonstrated in cases like McGuiness v J T Publishing Australia Pty Ltd [1999] NSWSC 471 and Aldridge v Johnston [2020] SASCFC 31.

• However, when offensive language is used without an accompanying false statement, it is less likely to be considered defamatory.

• As Spencer J explained in Ralston v Fomich (1992) 66 BCLR (2d) 166 at 169, certain words may not be capable of defamatory meaning without a qualifying statement or context.

Key takeaways

• While mere vulgar abuse may be offensive and hurtful, it is not considered defamatory due to its inability to cause significant harm to a person's reputation and its nature as an emotional expression rather than an assertion of fact.

• Assessing whether language is defamatory or simply mere vulgar abuse can be challenging, particularly in the context of social media and online communications. To make this determination, courts and legal professionals must carefully consider the context of the language used and the potential meanings that may arise.