Defamation law is concerned with the damage caused by a publication that puts a person’s reputation or character to question or disrepute in the eyes of the public. How those words which become the subject of examination in defamation matters are interpreted may be different depending on the context of the publication and with who is reading it. For this reason, the court needs to examine each of those words and phrases for their imputation – i.e. what they stand to mean. This article dives into what an imputation is and how the court deals with the determination of an imputation when considering whether an aggrieved person has been defamed.
In any claim for defamation, there are two fundamental elements to be determined by the Court in respect of imputations:
- Whether or not the imputations pleaded by the aggrieved person are conveyed by the publication; and
- If any of those imputations do arise, whether or not the imputations are defamatory of the plaintiff.
Limb 1: Whether or not the imputations are conveyed
Whether or not the imputations are conveyed is an objective question of law, and is tested by reference to the ordinary reasonable reader test. To satisfy that test, it must be established that an ordinary reasonable reader would have comprehended the publication in the way in which the imputations have been pleaded. There are two primary elements that must be taken into account in determining whether the test is satisfied:
- what are the attributes of an ordinary reasonable reader; and
- how would an ordinary reasonable reader comprehend the publication.
The ordinary reasonable reader is, at law, an individual that is of ordinary intelligence, experience and education. They are individuals not “avid for scandal”, or “suspicious of mind”. In short, the ordinary reasonable reader will not search for adverse meanings, but will comprehend the publication with a level head.
In determining whether that ordinary reasonable reader would comprehend the publication to convey the imputations, there are a number of considerations. Importantly, the ordinary reasonable reader would consider the express meanings that arise from the publication, but they may also consider the meanings that arise by way of inference, implication, or innuendo. A true innuendo will arise in circumstances where, for example, readers of the publication have specific or special knowledge relating to the aggrieved person which allows an innuendo to be formed by reference to the words published. Finally, the conveyance of imputations may be determined by considering the publication as a whole, but may also have reference to particular parts of it.
It is not necessary that each of the imputations pleaded are conveyed, or are defamatory. It is sufficient for some of the imputations to be found to be conveyed. In respect of those imputations which are found to be conveyed, it must then be determined whether those particular imputations are defamatory. However, only the imputations that have been pleaded may be found, and there is no discretion to find imputations which have not been pleaded by the aggrieved person. For this reason, it is deftly important that a defamation is properly pleaded from the outset as a failure to plead the imputations properly may be a costly and, in some cases, futile exercise.
Limb 2: Whether or not the imputations are defamatory
If an imputation is found to be conveyed, it is then a matter of determining whether the imputations are defamatory of the aggrieved persons. In determining this question, it is a matter of whether the reputation of the aggrieved person will be diminished in the eyes of the general public, or the reader of the publication, as a result of the imputations that arise.
An imputation may also be defamatory where the publication of the imputations results in the aggrieved person being ridiculed, avoided or shunned by readers of the publication. However, it is not necessary for the aggrieved person to show that the publication of imputations has already caused damage to their reputation, but is instead just that is has or is likely to cause such harm.
Imputations, and the legal process of pleading and determining them, are common across all states. They are heavily discretionary, as each individual will interpret and comprehend a publication in different ways. Therefore, it is extremely important that imputations are pleaded comprehensively, and with great care and skill.
Have you been the subject of negative public publications and want to learn more about your rights? Contact our defamation team today at [email protected] to discuss you matter further.
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