Identification of the person defamed

The Defamation Act 2005 (WA) (‘Defamation Act’) does not specifically require the publication to identify or refer to the plaintiff. However, the imputation will not be likely to cause damage to the plaintiff’s reputation unless it is about the plaintiff (Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 371; Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 at 23) .

Therefore, to justify an award of damages for defamation, the plaintiff must show that the defamatory publication was about them. 

If the plaintiff is identified by name, then this is sufficient (Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 639).  They will just need to show that the defamatory imputations were in fact published by the defendant and that no defence is available. So too, if the plaintiff is identified by their position, e.g. the ‘Minister of such and such’ (Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 at 91).

Likewise, a reference to an ABN or ACN may suffice for a company (AIFME ’97 Pty Ltd v Norley Pty Ltd [1999] NSWCA 259).  

However, where the plaintiff is not named then the plaintiff has to show that they could be identified by the recipients of the publication who have the requisite knowledge of extrinsic facts, at the time of the publication (Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632; Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 at 88 per Hunt J).  

Extrinsic Facts

When the plaintiff isn’t specifically named, the question becomes whether an ordinary, reasonable person, with knowledge of the extrinsic facts, would have reasonably understood the publication to be about the plaintiff (Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 352 per Moffitt P). 

The ordinary person is presumed to be able to make inferences and does not have to approach the question in a legal sense. In addition, if the defamatory statement was published in a sensational newspaper, then greater latitude might be allowed than if it were published in a more serious newspaper (Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 364). 

What constitutes an ‘extrinsic fact’ is best illustrated by an example. In Lewis v Daily Telegraph Ltd [1964] AC 234, at 278 Lord Devlin stated that “to say of a man that he was seen to enter a named house would contain a derogatory implication for anyone who knew that that house was a brothel but not for anyone who did not”. 
If relying on extrinsic facts, then the plaintiff needs to prove the existence of those facts, unless they’re common knowledge (Gumina v Williams (No 1) (1990) 3 WAR 342 at 344).

Take the above example, if the publication had stated that the man was seen to walk into a brothel, then the ordinary natural meaning of the words would themselves be defamatory, and there would be no need to plead and prove the existence of the extrinsic fact. However, if not stated that the house was a brothel, then the plaintiff would have to prove that it was in fact one. 

Lastly, the intention of the publisher is irrelevant. Therefore, even if the defendant was referring to an entirely fictional character, who happened to have the same name as, or because of the extrinsic facts was identified as the plaintiff, the plaintiff still has a cause of action in defamation (Lee v Wilson and Mackinnon (1934) 51 CLR 276).