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LAWS212 EXAM STRUCTURE
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Laws212 defamation exam structure- including ways to answer questions
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Plaintiffs caseTo successfully bring a claim under defamation, [plaintiff] must prove that the information:
(1) Holds a defamatory meaning; (2) leads to the identification of the plaintiff; and (3) that there has indeed been
publication. [Plaintiff] is not required to prove that the statement is false; neither do they have to prove intent or damage.
[Plaintiff] must satisfy all three elements in order bring a successful claim. The onus then shifts onto [defendant] to prove
at least one of these defences in order for the defamation action to be unsuccessful: [a) That the statement was true; or b)
it was honest opinion; or c) That they had qualified privilege to publish the statement.]
1. The meaning
S 37 of the defamation Act requires the plaintiff plead the meaning, in other words what is the sting of the publication the
defendant will have to meet this meaning if they wish to defend the claim. [Plaintiff] is likely going to plead the literal or
stronger meaning of the publication
The test for defamatory meaning is what an ordinary, reasonable, fair-minded reader would take the
[post/statement/picture] to mean (Charleston). The alleged defamatory material must be examined in its entirety as it is
assumed that readers read the whole thing. The has been adopted in new Zealand law in Craig v slater
- Characteristics of a Reasonable Person: - Not enthusiastic for scandal i.e. not looking for defamatory meaning
- The meaning must be fair and reasonable Charleston.
• Spell it out, what does the word means when the plaintiff said it
• Why do you think they are defamatory?
• can think of the words as the sting of the publication - think about the implication.
o What do most people think?
o Generally, majority
- The starting point is that words are given their "natural and ordinary meaning”.
- This will be the "meaning, including any inferential meaning, which the words would convey to the mind of the
ordinary, reasonable, fair-minded reader.” (Charleston)
When they said [word] they meant argue a meaning
- What is the sting?
- What do most people think about what had been said – what imputation did the words carry?
[Plaintiff] could argue that an ordinary, reasonable fair-minded reader, would have interpreted [specific information],
through its natural and ordinary meaning, which is [explicit/implied] to mean that [explain sting]. Courts will also assume
that the audience will interpret the meaning in the same way. (Charleston)
- Three tiers of meaning (chase) adopted in Craig v slater
a. Actual imputation of serious wrongdoing
b. Reasonable grounds to suspect serious wrongdoing.
c. Action which is morally wrong but not terrible
Triviality
- Harm exception Craig v Slater
- “For a meaning to be defamatory, it must tend to affect the claimant’s reputation adversely. And it must do so in
more than a minor way. That qualification… reflects the serious harm threshold developed in United Kingdom
courts, and since legislated for there.” (para [44])
Bane and antidote
• A publication must be taken as a whole so that even if one part of a publication is discreditable, it will not be
defamatory if its effect is offset by other parts of the article.
• The question is what the overall impression of is created by the publication
• The antidote does not necessarily need to be in the same publication (McGee v Independent Newspapers Ltd).
Eg, if there was a photo in the article, but then the caption takes away the sting of the photo
If an article's discreditable part (the sting) can be balanced by its positive aspects (the antidote), it won't be considered
defamatory. (Charleston) The main question when reading a publication is the overall impression created by the
, publication. The antidote must be sufficient enough to fully rectify harm done (Morosi), and must be sufficiently linked
with the bane so that they can be treated as one publication. In this case…
Single meaning rule
In order to be defamatory, a statement must have the effect of lowering the claimant in the estimation of right-thinking
members of society generally.
“Although a combination of words may in fact convey different [senses] to the minds of different readers, the jury in a
libel action, applying the [natural and ordinary meaning principle], is required to determine the single meaning which the
publication conveyed to the notional reasonable reader and to base its verdict and any award of damages on the
assumption that this was the one sense in which all readers would have understood it” (Charleston).
Innuendo
• An inuendo means that there are words that means something entirely different if you have information outside
the publication, meaning you read the words different
• When you need extra special information to understand the defamatory meaning (Lewis)
To the ordinary person the content in question may not seem defamatory. However, the information may be a legal
innuendo, as some people may have special knowledge which would allow them to understand the statement to be
defamatory (Lewis). [state special group] with special knowledge that [insert special knowledge] may understand the
information to mean that [state defamatory meaning]. Due to this extrinsic knowledge by this class of people, the
information will take on a defamatory meaning.
Is the meaning defamatory?
Sim v stretch tend to lower the plaintiff in the estimation of right thinking members of society generally – not a specific
group
- A false statement about the plaintiff to his or her discredit (Youssoupoff)
- Does it expose the plaintiff to ridicule or contempt Parmiter
- Tends to cause others to shun and avoid Youssoupoff
Conclude whether it is defamatory
2. Identification
- Intention is NOT a defence for defamation, and the publisher’s intention is completely irrelevant to the element of
identification (Hulton)
- If readers interpret the statement as personally implicating the plaintiff, the identification element of the
defamation claim is satisfied.
- PLAINTIFF NOT NAMED: Where the plaintiff is not named the test that decides whether the words used refers
to him is the question whether the words are such as would “would reasonably lead persons acquainted with the
plaintiff to think that he was the person referred to”. (Morgan)
- It doesn’t matter if people believe the defamatory statement or not, just as long as their attention is drawn to the
plaintiff (Morgan)
GROUP IDENTIFICATION
- where the statement was about a group, an individual cannot bring an action, unless that class of persons was so
small that the reasonable person reading the statement will direct their minds straight to the plaintiff. (Knupffer)
- May have right to sue if plaintiff holds a distinct role within the group which makes readers reasonably relate the
material to them i.e. captain of netball team in cheating scandal (Knupffer)
o Court found that the words published could not reasonably be understood to have been spoken of the
plaintiff. A group of under 12 people will be classed as small enough.
Explicit Identification The element of identification will be satisfied as [plaintiff] is clearly recognised in the publication
by name/photograph. The intention of [defendant] is irrelevant (Hulton).
Individual Identification (Implicit) The identification of [plaintiff] was singular, as they have been singled out in the
defamatory material. The intention of [defendant] is irrelevant (Hulton). The identification of [plaintiff] isn’t easily
established as [plaintiff] isn’t named or photographed. Therefore, the identification element will only be satisfied if
people reasonably acquainted with the [plaintiff] would assume that the material referred to the [plaintiff] (Morgan).
Therefore, [plaintiff] would argue that…
[Defendant] will counter-argue….
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