Is the first imputation in the primary tweet defamatory?
140 The leading Australian case on the question of defamatory meaning is Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460.
141 In that case, the plurality (French CJ, Gummow, Kiefel and Bell JJ) said at 466-9 [1]-[7]:
The common law recognises that people have an interest in their reputation and that their reputation may be damaged by the publication of defamatory matter about them to others. In Uren v John Fairfax & Sons Ltd Windeyer J explained that compensation for an injury to reputation operates as a vindication of the plaintiff to the public, as well as a consolation.
Spencer Bower recognised the breadth of the term "reputation" as it applies to natural persons and gave as its meaning:
[T]he esteem in which he is held, or the goodwill entertained towards him, or the confidence reposed in him by other persons, whether in respect of his personal character, his private or domestic life, his public, social, professional, or business qualifications, qualities, competence, dealings, conduct, or status, or his financial credit …
A person's reputation may therefore be said to be injured when the esteem in which that person is held by the community is diminished in some respect.
Lord Atkin proposed such a general test in Sim v Stretch, namely that statements might be defamatory if "the words tend to lower the plaintiff in the estimation of right-thinking members of society generally". An earlier test asked whether the words were likely to injure the reputation of a plaintiff by exposing him (or her) to hatred, contempt or ridicule but it had come to be considered as too narrow. It was also accepted, as something of an exception to the requirement that there be damage to a plaintiff's reputation, that matter might be defamatory if it caused a plaintiff to be shunned or avoided, which is to say excluded from society.
The common law test of defamatory matter propounded by Lord Atkin was applied in Slatyer v Daily Telegraph Newspaper Co Ltd, although Griffith CJ expressed some concern about the ambiguity of the expression "right thinking members of the community". The general test, stated as whether the published matter is likely to lead an ordinary reasonable person to think the less of a plaintiff, was confirmed by this court in Mirror Newspapers Ltd v World Hosts Pty Ltd, Chakravarti v Advertiser Newspapers Ltd and by Callinan and Heydon JJ in John Fairfax Publications Pty Ltd v Gacic. Gummow and Hayne JJ in John Fairfax referred to the likelihood that the imputations might cause "ordinary decent folk" in the community to think the less of the plaintiff.
Putting aside Lord Atkin's additional requirement of being "right-thinking", the hypothetical audience, that is to say the referees of the issue of whether a person has been defamed, has been regarded as composed of ordinary reasonable people, whom Spencer Bower described as "of ordinary intelligence, experience, and education". Such persons have also been described as "not avid for scandal" and "fair-minded". They are expected to bring to the matter in question their general knowledge and experience of worldly affairs.
In Reader's Digest Services Pty Ltd v Lamb, Brennan J explained that any standards to be applied by the hypothetical referees, to an assessment of the effect of imputations, are those of the general community:
"Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation … being a standard common to society generally …"
(Citations omitted)
142 Later in their reasons, their Honours said that "[t]he concept of 'reputation' in the law of defamation comprehends all aspects of a person's standing in the community", including upon their character or their business or professional reputation. They continued (at 477 [36]-[37]):
It has been observed that phrases such as "business reputation" or "reputation for honesty" may sometimes obscure this fact. In principle therefore the general test for defamation should apply to an imputation concerning any aspect of a person's reputation. A conclusion as to whether injury to reputation has occurred is the answer to the question posed by the general test, whether it be stated as whether a person's standing in the community, or the estimation in which people hold that person, has been lowered or simply whether the imputation is likely to cause people to think the less of a plaintiff. An imputation which defames a person in their professional or business reputation does not have a different effect. It will cause people to think the less of that person in that aspect of their reputation. For any imputation to be actionable, whether it reflects upon a person's character or their business or professional reputation, the test must be satisfied.
The reference in the general test, as stated in Sim, to a plaintiff being "lowered in the estimation" of the hypothetical referee does not imply the exercise of a moral judgment, on their part, about the plaintiff because of what is said about that person. It does not import particular standards, those of a moral or ethical nature, to the assessment of the imputations. It simply conveys a loss of standing in some respect.
143 It was common ground that a statement which exposes a plaintiff in a defamation proceeding to hatred, contempt or ridicule satisfies the general test, namely whether the published matter is likely to lead an ordinary reasonable person to think the less of a plaintiff, because it is comprehended within it.
144 Here, Mr Greenwich contended that the primary tweet caricatured him and exposed him to ridicule by "reducing him to a filthy sex act" that led to a loss of standing.
145 As long ago as 1840, Parke B said in Parmiter v Coupland (1840) 151 ER 340 at 342 that "[a] publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt or ridicule, is a libel".
146 As Dr Collins submitted, that statement acknowledges that a person may suffer a loss of standing when they are exposed to hatred, contempt or ridicule, "and that can often happen because a person is reduced to a form of reductionist caricature, someone to be reviled or pitied or laughed at".
147 A more recent case in which a plaintiff alleged that he had been exposed to hatred, ridicule or contempt is Berkoff v Burchill [1996] 4 All ER 1008.
148 Miss Julie Burchill was a journalist and writer who was retained to write articles about the cinema for The Sunday Times in London. Mr Steven Berkoff was a well-known actor, director and writer. He brought an action for damages for libel against Miss Burchill and the newspaper on the ground that in two articles written by Miss Burchill and published by the newspaper, statements were made which meant and were understood to mean that he was "hideously ugly" and therefore were defamatory, since they would tend to expose him to ridicule and/or would tend to cause other people to shun or avoid him.
149 In the first article, Miss Burchill wrote and the newspaper published a review of the film The Age of Innocence, writing: "… film directors, from Hitchcock to Berkoff, are notoriously hideous-looking people." Nine months later Miss Burchill reviewed the film Frankenstein. In this review, which the newspaper published, Miss Burchill described a character in the film called "the Creature". She wrote:
The Creature is made as a vessel for Waldman's brain, and rejected in disgust when it comes out scarred and primeval. It's a very new look for the Creature - no bolts in the neck or flat-top hairdo - and I think it works; it's a lot like Stephen Berkoff, only marginally better-looking.
150 The judge at first instance held that the meaning of the words pleaded by the plaintiff was capable of being defamatory and he dismissed the defendants' application for the action to be dismissed. The defendants appealed, contending that the characteristic of the tort of defamation was injury to reputation and the fact that a statement might injure feelings or cause annoyance was irrelevant to the question whether it was defamatory.
151 Neill LJ and Phillips LJ (Millet LJ dissenting) dismissed the appeal. In his reasons, Neill LJ reviewed a number of old cases, including Zbyszko v New York American Inc (1930) 228 App Div 277.
152 Mr Zbyszko, who was a wrestler, complained of references to him in an article published by the defendant on the theory of evolution. The article contained a photograph of him in a wrestling pose and under it the words: "Stanislaus Zbyszko, the Wrestler, not Fundamentally Different from the Gorilla in Physique". In close proximity there was a photograph of a "hideous looking" gorilla. The plaintiff's action was struck out at first instance but reinstated on appeal, because the tendency of the article was to disgrace him and bring him into ridicule and contempt. Judge McAvoy said (at 413):
Any written article is actionable … if it tends to expose the plaintiff to public contempt, ridicule, aversion, or disgrace, or induce an evil opinion of him in the minds of others and deprives him of their society. It is not necessary that words impute disgraceful conduct to the plaintiff. If they render him contemptible or ridiculous, he is equally entitled to redress.
153 In Ettingshausen v Australian Consolidated Press Ltd (1991) NSWLR 443, the plaintiff, a then well-known footballer, was shown in a photograph published in the defendant's magazine. The photograph was capable of being interpreted as showing his genitals. Hunt J held that the matter complained of was capable of conveying an imputation that the plaintiff is a person whose genitals have been exposed to the readers of the defendant's magazine, a publication with a widespread readership, and that imputation was capable of defaming the plaintiff.
154 In the course of his reasons, Hunt J referred to and quoted from a decision of Judge Learned Hand in Burton v Crowell Pub Co 82 F (2d) 154 (1936). In that case, Mr Burton, a widely known steeplechaser, agreed to pose for photographs to be used in advertisements for a cigarette company. One published photograph represented him coming from a race to be weighed in, carrying his saddle in front of him. A white girth was suspended from the saddle but, because of the angle at which the photograph was taken and because the photograph was slightly blurred at this point, the girth appeared to be attached to the plaintiff and not to the saddle. Judge Hand, for the court, described the effect of the photograph as "grotesque, monstrous and obscene". It was held that, because the matter complained of was calculated to expose Mr Burton to more than trivial ridicule, it was prima facie actionable, despite the fact that it asserted nothing about the plaintiff himself and notwithstanding that the impression which it conveyed (that the plaintiff had exposed his penis) was obviously an optical illusion. Relevantly, Judge Hand said:
Had such a picture been deliberately produced, surely every right-minded person would agree that he would have had a genuine grievance; and the effect is the same whether it is deliberate or not. Such a caricature affects a man's reputation, if by that is meant his position in the minds of others; the association so established may be beyond repair; he may become known indefinitely as the absurd victim of this unhappy mischance. Literally, therefore, the injury falls within the accepted rubric; it exposes the sufferer to 'ridicule' and 'contempt'.
155 Dr Collins relied on that passage from Judge Hand's opinion as follows:
And we submit that's what happened to Mr Greenwich here. By the reductionist caricature of Mr Greenwich, a Member of Parliament, to a sex act involving faeces, Mr Latham created a caricature which is apt to establish an association that damages Mr Greenwich's standing …
156 Mr Latham did not squarely confront the question of whether, assuming the first imputation of the primary tweet to be conveyed (that is, that Mr Greenwich engages in disgusting sexual activities), it was defamatory. The submissions advanced on his behalf both in writing and orally proceeded on the assumption that the primary tweet went no further than saying that Mr Latham was "raising disgust at homosexual sex in response to himself being called disgusting" and that so understood, that would not make the ordinary reasonable person think any less of Mr Greenwich. Mr Smark put his submissions as follows:
Having regard to the present standard of community attitudes, towards people's private sexual lives, if it's right to say, as we say it is, that an allegation that people are homosexual, or men are homosexual, or that a man or a group of men engage in homosexual intercourse, is not defamatory to ordinary reasonable people in 2024, or 2023 … then the question is - and we say the answer to that is that's correct, it's not - then what is relevantly different about the primary tweet - relevantly different? Can it be that the difference to the ordinary reasonable person who thinks what people do in their own bedroom is up to them, as long as no one's hurt and as long as there aren't children involved, can it be supposed that the type of homosexual intercourse makes a difference to the ordinary reasonable person?
…
But the context - the fact that the ordinary reasonable reader would see that Mr Latham is referring to - raising disgust at homosexual sex in response to him himself being called disgusting - how is that going to make people think less of Mr Greenwich?
And we say the position is advanced by invoking the ridicule test, because they still - the ridicule mechanism still has to be brought within … the main test, and as we sought to illustrate by reference to the ridicule cases, that the mechanism - it's one thing to attempt to expose someone to ridicule, but to successfully ridicule someone in a way that carries a meaning that lowers them in the estimation of right-minded people is very challenging.
157 I do not accept those submissions, because, in my view, the ordinary reasonable person would not read the primary tweet as being limited to homosexual men generally, or that they would shrug off the tweet in the way Mr Smark suggests. In my view, the primary tweet exposed Mr Greenwich to hatred, contempt and ridicule for the reasons submitted by Dr Collins, and the ordinary reasonable person would think less of Mr Greenwich because the literal meaning of the tweet is that he engages in disgusting sexual activities.
158 For those reasons, I find that the first pleaded imputation is defamatory of Mr Greenwich.