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The tort of defamation consists of the communication of a defamatory meaning and of concerning the plaintiff to a person other than the plaintiff. This tort is actionable per se and the onus is on the plaintiff to prove on the balance of probability that the meaning relied upon by the plaintiff was conveyed by the publication and that meaning was defamatory to him or her.


The elements of this tort


1. defamatory matter


Defamatory matter may be written or oral or published in some other tangible form. The matter itself is not defamatory unless a person of average intelligence could reasonably place upon it an interpretation which is defamatory. That may be so even if known to be false. The matter extends to both imputations concerning moral characteristics and those concerning ability, if such imputations are likely to discredit the person.


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The natural and ordinary meaning is the basis for construction of words. Accordingly, any strained or utterly unreasonable interpretation is rejected. Since meaning must be taken from the context in which the publication occurs, a defendant may be able to establish to the satisfaction of a jury that in the particular context an imputation amounts to mere general abuse and is not defamatory in the circumstances.


Ø In the present case, it is more likely that this element will be found to have been satisfied as there is clear imputations concerning the ability of Mr Williams and such imputations are made and are likely to discredit him. It is hard to see in this particular facts how the comments are merely a generally abuse when Mr Taylor is recommending someone to do the work.


. Reference to the Plaintiff


The reference to Mr Williams is clear in the email and this element is also satisfied.


. Publication


There is no defamation unless the matter is published to a third party, otherwise there would be no injury to reputation. Publication to a single person is sufficient (Pullman-v-Walter Hill & Co). This is also satisfied in these facts.


Defences


The truth or falsity of a publication is not relevant to the determination of whether the publication conveys a defamatory meaning or is defamatory to the plaintiff. (Vast-v-Queensland Newspapers Pty Ltd [11] QD R 54). At common law, a defamatory publication is presumed false in the absence of a plea of the defence of truth (Allworth-v-John Fairfax Group Pty Ltd (1) 11 FLR 54 at 66). In all jurisdictions except New South Wales a defamatory publications is presumed false. In New South Wales, truth is only a defence for the publication of a defamatory imputation which relates to a matter of public interest or is published under qualified privileges (section 15() of the Defamation Act 174 NSW).


The defence of a fair comment is only available where the matter relates to a matter of public interest (section of the Defamation Act)


The defendant may raise as a defence an offer of amends made to the plaintiff under section 7 of the Defamation Act.


The malice of the defendant is relevant to damages only if it adds to the actual harm suffered by the Plaintiff.


The defences of absolute and qualified privilege, which exist under the common law in all jurisdictions and are variously modified by legislation, allow for greater freedom of speech than would otherwise be permitted.


The defence of absolute privilege exists at common law and under legislation in all jurisdictions


The common law defence of qualified privilege remains applicable with statutory modifications in New South Wales.


Common law


At common law, a publication is made on a privileged occasion if it is made without malice by a person in discharge of some public or private duty, whether legal, social or moral for the purpose of pursuing or protecting some private interest. It must be made to someone who has a corresponding interest in receiving the communication.


Statutory defence of qualified privilege In New South Wales


A statutory defence of qualified privilege is available where, in respect of matter published to any person


(1) the recipient has an interest or apparent interest in having information (information includes both fact and opinion) on some subject;


() the matter is published to the recipient in the course of giving to him or her information on that subject; and


() the conduct of the publisher in publishing that matter is reasonable in the circumstances.


The publication must have been published on an occasion of qualified privilege, whether at common law or under the legislation, and be relevant to that occasion, that is, relevant to the provision of the information on the subject matter in which the person has an interest or apparent interest. That the publication was for reward does not affect the availability of the defence. The defence is defeated by proof of malice on the part of the defendant.


Reasonableness of publication


It is the publisher’s conduct in publishing defamatory imputations and not in conveying information on a subject of public interest which must be reasonable. Whether the conduct of the publisher in publishing was reasonable in the circumstances involves a consideration of all the circumstances leading up to and surrounding the publication. As the circumstances will vary infinitely from case to case it is impossible and unwise to attempt any comprehensive definition of reasonableness in such a context. Relevant factors include


(1) the manner and extent of publication;


() the defendant’s belief in the truth of the publication5 and knowledge of the likelihood of conveying a misleading impression;


() the connection between the subject and the imputation and the reasonableness of the imputations in fact conveyed;


(4) whether any comment was fair and based upon the facts as stated; and


(5) what care was exercised before publication.


The defendant must establish that


(1) he or she exercised reasonable care in making proper inquiries in relation to the accuracy of his or her sources;


() his or her conclusions, whether statements of fact or opinion, followed logically, fairly and reasonably from the information obtained;


() the manner and extent of the publication did not exceed what was reasonably required in the circumstances; and


(4) each imputation intended to be conveyed was relevant to the subject matter which he or she was presenting to the public.


There is no absolute obligation placed upon publishers to seek and obtain explanations from the plaintiff. The requisite extent of any prior inquiries will depend upon the nature of the source of information and the position, standing, character and opportunities of knowledge of the informant, as perceived by the defendant. Whether the defendant should have undertaken further inquiries should be determined only by reference to material properly available to him or her at the time of publication.


Generally it will not be reasonable to publish


(1) rumours that a person has been guilty of discreditable conduct;


() material known to be false, without an express disclaimer;


() an irrelevant defamatory statement in the course of giving information to those with the relevant interest; or


(4) unfair and inaccurate material.


Malice


For the purposes of the law of defamation ‘malice’ is a particular state of mind, such as ill will or spite towards a plaintiff resulting in publication for an improper or foreign purpose or without an honest belief in the truth of the publication. These are separate and distinct grounds of malice. A belief in the truth of the publication is not sufficient, for example, to save a defence of qualified privilege where the defendant has published with an improper motive. The malice need not be directed at the plaintiff, so that malice in a publication directed towards the plaintiff or another person may defeat a defence of qualified privilege in respect of the defamation of the plaintiff by that publication.





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