Obermann v ACP Publishing Pty Limited [2001] NSWSC 1022 | Case summary

Judgment (Imputations - capacity - form - ridicule) 1 The plaintiff has instituted proceedings against the defendant founded in its publication of the magazine "The Picture". The relevant edition is that of 21 June 2000. Ms Obermann's causes of action are constituted by imputations said to be carried by the publication and to be defamatory of her. 2 On 1 June this year Simpson J ordered that the requirements of SCR Pt 67 r 12(2) be dispensed with and that the plaintiff was entitled to rely upon the whole of the publication. In the course of her judgment ([2001] NSWSC 178) her Honour described the publication as follows: "4 'The Picture' can, not unfairly, be described as low grade pornography. It is a rather cheap looking glossy magazine, partly in colour, partly black and white. It features male and female nudity (in titillating, pornographic, style), lewd, crass and vulgar commentary, and coarse language. Sexually suggestive pictures, articles and advertisements abound, as do advertisements for a range of sexual services and products. Particularly prominent are photographs of women with their breasts exposed. Without wishing to be unduly censorious, I think the magazine may properly be described as distasteful to many people. 5. On pages 70 and 71 appears a double page spread, featuring five photographs of a woman who is naked in four photographs and almost naked in the other. There is an invitation to women to expose their breasts for similar photography, and an offer of $500 to those who do. Through the magazine there are numerous additional references to the payment of money for publication of photographs, letters and poems. 6. Thinly interspersed among this is some material, principally advertising, that lacks any apparent sexual overtones. For example, on the inside front cover is a full page advertisement for a brand of mobile telephones. On page 32 is a full page advertisement for a cabinet housing the necessary paraphernalia for a poker game. There is a crossword puzzle which appears to have no sexual connotations, although a cartoon that does have such overtones interrupts the clues. In full, the magazine runs to 102 pages. It is overwhelmingly sex-centred and pornographic". 3 I agree generally with her Honour's description of this publication. Pornography is defined in The New Shorter Oxford English Dictionary as "The explicit description or exhibition of sexual subjects or activity in literature, painting, films, etc, in a manner intended to stimulate erotic rather than aesthetic feelings…" 4 By reference to that definition, the publication could be described as "pornographic". In my view, within the "genre," the more appropriate description would be "soft-core pornography". 5 It is on page 3 of this publication that there appears the reference to the plaintiff. The word "reference" is hardly adequate. Page 3 contains two photographs on the top one of which in small print are the words (with a graphic of a camera) "Big Australia". The principal "headline" is "This Sporting Bosom". Both photographs depict two female water polo players. It is quite clear that the two photographs were taken during the course of what I presume to be a vigorous water polo match. The top photograph shows the plaintiff, her swimming costume having become "askew" (to use Simpson J's word) with both her breasts exposed. This photograph bears the caption "Only in women's water polo do you find spunkbubbles like these". The bottom photograph depicts the plaintiff in a similar state and bears the caption "Wet Tits Perk Up Polo's Pulling Power". What was described in submissions as the "editorial" component of the page is in the following terms: "THE usually VERY DULL sport of water polo became briefly interesting when SOME BOSOMS popped out during a recent women's match. Natalie Obermann was playing for the Dolphins against the Tritons in the WA Water Polo League Grand Final, when this AMAZING MOMENT IN AQUATIC SPORT led to their … erm, UNCORKING. What a grouse PRE-OLYMPIC TREAT, eh readers! But what have Nat's NICE NAY-NAYS got to do with the Olympics? Well, water polo is getting its first run at the Games this year and if all the fixtures feature as much BLAMPAGE as this one, you can be sure the stands will be CHOCK-A-BLOCK with BLOKE'S COCKS. It'll be ace. Especially if SPUNKY Liz Weekes gets 'em out as well. Yep, everyone'll be a winner - especially our grand old BROWN country. Of Australia. Now, if only the Australian women's soccer team had thought of doing something like this. Oh … wait … they FUCKEN DID". 6 The plaintiff proposes to plead the following imputations as her causes of action: "5. (a) The plaintiff allowed photographs of her exposed breasts to be published in a pornographic magazine. (b) The plaintiff is a person whose breasts were exposed to the readers of a pornographic magazine; (c) The plaintiff allowed photographs of her exposed breasts to be published in a pornographic magazine in order that men could achieve sexual gratification at the sight of her breasts; (d) The plaintiff, as a waterpolo player, belittled her sport by allowing photographs of her exposed breasts to be published in a pornographic magazine; (e) The plaintiff is the sort of athlete who sells photographs of her exposed breasts to a pornographic magazine; (f) The plaintiff allowed photographs of her exposed breasts to be published in a pornographic magazine in order to promote the sport in which she competes; (g) Alternatively to (a) to (f) above, the plaintiff is a person whose breasts were exposed to the readers of the defendant's magazine 'The Picture', a magazine with a widespread readership. 6. In the alternative, the matter complained of by reason of the extrinsic fact below, carried the following imputation which is defamatory of the plaintiff: (a) The plaintiff allowed photographs of her exposed breasts to be published in a pornographic magazine in order to promote the sport in which she competes. Particulars of Extrinsic Fact Members of the Australian Women's Soccer Team authorised the publication of photographs of their naked bodies in a calendar to promote Australian women's soccer". 7 Pursuant to SCR Pt 31 r 2, and by consent, there was argued the question of whether or not the publication complained of was capable, as a matter of law, of giving rise to the imputations and whether such imputations are capable of being defamatory. The basis of this approach was the evolution of the plaintiff's proposed pleading to the point where, on a strict technical basis, as I understand it, the plaintiff is proposing to amend to plead the imputations set out above. 8 The defendant approached the question of capacity as a matter of law from the point of view of fundamental principle. With this approach the plaintiff took no issue. The test for whether an imputation is capable of arising from the matter complained of by the plaintiff is well known: the issue is one of reasonableness: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 166. That issue of reasonableness is to be judged from the stand point of the ordinary reasonable reader and if an imputation cannot reasonably be carried to such a reader it is incapable as a matter of law of being conveyed. Allowance is made for the capacity of matter to convey imputations where the words used are imprecise, loose, fanciful or unusual. It is, however, fundamental that the standard is the ordinary reasonable reader and that this standard is constant irrespective of the publication in question or the supposed readership of it. That reader is not to be regarded as a member of a category of readers belonging to a particular group - for example, the reader who habitually or usually reads "The Picture" in respect of whom it might not unfairly be said that such a person may be regarded as neither ordinary nor reasonable. 9 In Charleston v Newspaper Group Newspapers Limited (1995) 2 AC at 73-74, in circumstances where the "News of the World" had published artificially-generated naked photographs of a number of soap opera stars, Lord Nicholls of Birkenhead said (at 7G-H): "The law adopts a single standard for determining whether a newspaper article is defamatory: the ordinary reader of that newspaper. I leave aside cases where some readers may have special knowledge of facts which would cause them to give the words a different meaning. In principle this is a crude yardstick, because readers of mass circulation newspapers vary enormously in the way they read articles and the way they interpret what they read. It is, indeed, in this very consideration that the law finds justification for its single standard. The consequence is that, in the case of some publications, there may be many readers who understand in a defamatory sense words which, by the single standard of the ordinary reader, were not defamatory. In respect of those readers a plaintiff has no remedy. The converse is equally true. So a newspaper may find itself paying damages for libel assessed by reference to a readership many of whose members did not read the words in a defamatory sense". 10 The reference by his Lordship to the "ordinary reader of that newspaper" is not to be taken as a reference to the ordinary reasonable reader of "News of the World". The test is founded in the "ordinary reasonable person" who as reader, viewer, listener is confronted by the publication in the relevant medium. 11 The fundamental position of the defendant is that, making every allowance for the style of the magazine, the standard against which the question is to be judged is the ordinary reasonable reader who is a person of fair average intelligence, not morbidly suspicious nor avid for scandal. Insofar as the essence of the plaintiff's case rests upon the publication being understood as imputing that she permitted photographs of her exposed breasts to be published in a "pornographic" magazine, the defendant submits that any such meaning could not possibly be conveyed to any such reader. 12 Essentially the plaintiff does submit that the publication conveys meanings that she allowed pictures of her exposed breasts to be published. This is founded in the proposition that in other parts of the magazine it is quite clear that women (and, indeed, men), have consented to their appearance being reproduced as naked or semi-naked. Some sections of the magazine are devoted to advertisements for adult products and services that seem to cover the range of sexual orientations. Other parts of the magazine are given over to posed photographic segments of naked and semi-naked women: there is a section towards the end of the magazine entitled "home girls" from which, it is said, it can be gleaned that it obvious that each of these women has sent her photograph to the magazine in order to receive a cash prize. This however the defendant says is a discrete section of the magazine. 13 It is argued that the important thing to note about the content, particularly the above referred to, which distinguishes it from the pictures of the plaintiff, is the fact that the ordinary reasonable reader would regard it as consensual in the sense that the women who have allowed themselves to be portrayed in the magazine have plainly done so by consent, either in advertisements or in what is described as "editorial" comment. 14 The defendant submits that the photographs of the plaintiff plainly do not share this quality and have no similarity with the photographs in the balance of the magazine. What is described as "a stupid reader" might think that because some women have consented to having their photographs in the magazine, so has the plaintiff. The "stupid" reader is not the yardstick. Making every allowance for loose thinking, it is submitted that it is untenable to assert that the ordinary reasonable reader being of fair average intelligence would infer from other sections of the magazine that the plaintiff had either posed for or allowed photographs of her exposed breasts to be published. At this point it can be remarked that on no reasonable view can it be argued that the plaintiff would be understood as having "posed" for the photographs. They clearly were taken (irrespective of the question of the plaintiff's consent), during the course of a vigorous water polo match. The real issue is whether there would be an understanding as to the plaintiff consenting to these photographs being published. 15 It is upon the "action" nature of the photographs of the plaintiff, as I understand it, which the defendant relies to provide the contrast between the article concerning, and the photographs of, Ms Obermann and the context and content of other photographs in the balance of the magazine. It is said that far from assisting the imputations upon which the plaintiff relies to arise, they render it unreasonable for them to do so. The defendant's position is that the content might arguably assist the imputations to arise in the mind of a stupid or weak minded person but would "positively prevent" the imputations arising in the mind of the ordinary reasonable reader. 16 As I have remarked, the issue in this application is whether or not the publication complained of provides causes of action in defamation in the form of the imputations proposed by the plaintiff. It is to be taken for the purposes of this application that the plaintiff did not deliberately partially disrobe in the swimming pool; it can be taken that the plaintiff did not knowingly pose for the photographs of her in that state; it can be taken that the plaintiff did not consent to the publication of the photographs. The tort of defamation, if successfully actionable, provides a remedy by way of damages for a person injured in that person's good name or reputation. It is not a remedy for a mere offence against personal dignity, good taste or an intrusion into a person's privacy. In this context, Mr Blackburn of counsel for the defendant reminded me of what Blanesburgh LJ said in Tolley v JS Fry & Sons Limited (1931) AC 333 at 346-347: "Scrutton L.J.'s description of this thing is surely no a whit too severe. The caricature is a piece of offensive vulgarity - so vulgar indeed - and this is to my mind the fatal obstacle to the appellant's success I these proceedings - that it is almost beyond reason that any one knowing anything of the appellant, as he and his record were disclosed at the trial, could for a moment have supposed or even suspected that he had had anything whatever to do with its publication. That publication was, surely, only another instance of the toll levied on distinction for the delectation of vulgarity " (emphasis added). 17 Thus in this context the defendant submits primarily in relation to imputation (a) that the application of the fundamental test precludes on any basis that imputation arising. 18 As to imputation (b), the defendant acknowledges that the plaintiff rests this imputation on the decision of Hunt J in Ettingshausen v Australian Consolidated Press (1991) 23 NSWLR 443. I shall return to this decision in due course. I note the defendant's formal submission that I should not follow his Honour's reasoning and conclusion. 19 The defendant also submitted, and it is appropriate for me to mention it at this stage in order to rid the application of it, that there is a marked difference between this case and Ettingshausen's case. It is submitted, simply, that Ettingshausen's case involved the exposure of the male plaintiff's penis. It is argued that the exposure of a man's or woman's genitals in a magazine is in a different category altogether. It could be open to ordinary decent folk in the community to think less of a person whose genital organs were exposed to public view in a magazine. On the other hand it is not considered an offence against the law or an offence against decency, except, the defendant says, perhaps by "wowsers," for women to expose their breasts on public beaches in New South Wales. It is not considered an affront to decency for women to appear on television or in films with their breasts exposed. This is a brave argument and no doubt one to which a jury would attend with care. It is to be borne in mind however that the exposure by women of their breasts on the beach, publicly to breastfeed a child or the exposure in film and television would, as a general rule, would be taken as a deliberate and consenting act. Here we are concerned, as I have said, with the notion of consenting to the publication of photographs of the plaintiff's exposed breasts. 20 In this context reference was made to the decision of Bell J in Rivkin v Amalgamated Television Services Pty Ltd [2001] NSWSC 432 (28 May 2001). Inter alia, her Honour was concerned with an imputation "that the plaintiff had engaged in homosexual intercourse with Gordon Wood". Her Honour considered changes in community attitudes on the topic of homosexuality and did so by reference, inter alia, to amendments to the Crimes Act 1900 introduced in 1984, the Anti-Discrimination Act 1977, the Anti-Discrimination (Homosexual Vilification) Amendment Act 1993, the Property (Relationships) Legislation Amendment Act 1999 which amended the De Facto Relationships Act 1984. Her Honour held, by agreeing with a submission to the effect, that it is no longer open to contend that the shared social and moral standards with which the ordinary reasonable member of the community is imbued include that of holding homosexual men (or men who engage in homosexual sex), in lesser regard on account of that fact alone. Her Honour went on to say that "this is not to say that the assertion that a man is a homosexual (or that he has engaged in homosexual sex), may not give rise to a defamatory imputation such as hypocrisy, the abuse of a position of power or trust, infidelity or the like in the context of the publication or by way of true innuendo" (paragraph 30). 21 I agree with her Honour's observations; (cf my decision in Horner v Goulburn City Council (unreported, 5 December 1997)). I am constrained, however, by the context of this publication in the sense that the question for determination in the light of what is patent from the photographs, in my view, (they are not posed), is whether the intrusion of notions of "allowing" or "consenting" to the publication of photographs of exposed breasts in the manner as shown in this publication and contained in the various imputations, is available on the issue of capacity. This involves something more than merely a woman bearing her breasts. I am not persuaded that the considerations which informed her Honour in Rivkin's case easily can be transposed to the present. 22 As to imputation 5(c): whilst acknowledging that this imputation goes further by identifying that she allowed the exposure of the photographs of her breasts for the purpose of permitting men to achieve sexual gratification, the defendant nonetheless submits that the imputation fails utterly when viewed against the test of reasonableness by reference to the statement in Jones v Skelton (1963) SR 644 at 650 per Lord Morris "in deciding whether words are capable of conveying a defamatory meaning the Court will reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation". 23 As to imputation 5(d): the defendant first objects to it on the basis of form. I gather that this basis involves an assertion that it is ambiguous. It is contended that the ambiguity arises because the imputation could mean that the plaintiff deliberately permitted publication of the photographs with the purpose and intention of belittling her sport of water polo or, akin to a passive imputation, it could mean that by allowing photographs of her exposed breasts to be published her sport was belittled or her conduct had the affect of belittling her sport. It is argued that the nature of the meaning would be relevant to damages, the former being more serious than the latter meaning. Applying one of the tests, as I prefer to describe it, in determining the propriety of the form of an imputation namely, that propounded by Hunt J in Jackson v John Fairfax & Sons Pty Limited (1981) 1 NSWLR 36 at 41F-G, there is uncertainty as to what the defendant would have to prove if it chose (which it says it will not in this case) to justify that imputation. Uncertainty, it is submitted, attends the imputation in its present form in that regard. 24 As to imputation 5(e); in addition to the standard argument based upon reasonableness as to the capacity of the matter complained of to carry this meaning, the defendant attacks its form. It is said to be "imprecise" by reference to the use of the words "the sort of athlete". This is conceded by the plaintiff. If it is capable of arising the plaintiff will amend the imputation to eliminate this flaw in form. 25 As to imputation 5(f); this imputation will stand or fall with any decision I make in relation to particularly imputation 5(c), an imputation that includes an assertion of a purpose. The defendant, on a capacity basis, suggests that only someone very stupid or undiscriminating could understand the publication as conveying this meaning. 26 As to the alternative imputation (g): this is what may be described as an Ettingshausen imputation and I shall return to it. 27 A further submission was advanced for the defendant by reference to the Classification of Publications issued by the Office of Film and Literature Classifications. This document was not formally tendered and its precise status in the proceedings before me was uncertain. In any event, the fundamental contention for the defendant is that insofar as the imputations contain the reference to "pornographic", on no view could the publication be regarded as pornography according to current community standards. The defendant, nevertheless, does not resile from the proposition that it would be for the ordinary reasonable person (that is, a jury) applying the test of the ordinary reasonable reader to determine whether that reader would characterise the publication as pornographic. I have already referred to the dictionary definition of pornography (paragraph 3 above) and in the light of the position taken by the parties, I am of the view that if anything goes to the jury at all in respect of the causes of action pleaded it is appropriate that the "pornographic" magazine component be determined by that tribunal. 28 I can indicate now as I have suggested above (paragraph 4) that the magazine is capable of being so categorised and I do so without recourse to the question described as "fascinating" by Mr Smark of "what is art?" or indeed, to the consideration of what Mr Smark described as the "dialectic set-up of the appeal of the erotic versus the appeal to the aesthetic". 29 Mr Smark corralled the imputations into various categories: (a), (c), (d), (e) and (f) as the "permission" or "allowing" imputations, imputations (b) and (g) (the alternative imputation), the "ridicule" imputations and what is known as imputation 6(a), the true innuendo imputation. I do not see the need to isolate the true innuendo from the general course of argument in this application. 30 In respect of the imputations in the first category ((a), (c), (d), (e) and (f)), Mr Smark submitted that the magazine as a whole available to the tribunal of fact, was capable of conveying to the ordinary reasonable reader some notion of permission or participation by the plaintiff. At length and in detail, Mr Smark took me from page 3 virtually to the end of the publication, pointing out in particular those sections indicative of consensual participation in the publication of photographs especially, available to the reader to come to the view that meanings to the import of the imputations in that group in fact arise. For example, "The Picture", it is argued, is clearly directed to male readers to arouse them (see pages 3, 6 and 45) and to invite to them to masturbate by reference to its contents (see, for example, pages 8, 62 and 68). In short, the defendant's magazine is full of women who have apparently allowed their photographs to be published whether posed or not (see page 16) and the overwhelming impression is that "The Picture" publishes pictures of nude women and occasionally men who participate voluntarily in the photographic process. The nature of the publication is that any reader would not engage in a detailed reflection upon the differential role being played by the many women whose bodies are paraded therein. What is said to be the "compelling factor" in the present case is the fact that the whole rationale of the defendant's magazine would be understood to be the portrayal of women who willingly participate in the publication of photographs of them nude or semi-nude. 31 I am persuaded by Mr Smark's overall submission, on a capacity argument, that the ordinary reasonable reader could understand from the whole tenor and nature of the publication that the plaintiff permitted or allowed the publication of these photographs. I am persuaded that there is sufficient material to permit the additional component as set out in 5(c) (sexual gratification). 32 As to imputation 5(d) however, I am persuaded by the arguments of the defendant both as to form and capacity. Even if any flaw in form is cured I simply cannot be persuaded that the ordinary reasonable reader could understand the matter complained of as conveying the notion of "belittling her sport". There is nothing that I read in the photographs or the accompanying text in particular, or indeed anything else in "The Picture," that can give rise to any such notion. On the contrary, everything about the photographs in the context of the magazine as a whole points to the availability of a purpose to "promote" the sport rather than belittle it. The sport of water polo might in one place in the "editorial" part of page 3 be described as "dull"; the message however is clearly available that allowing photographs of what can happen in the vigorous pursuit of the sport could only lead to its advancement in popularity. Accordingly I will hold that imputation 5(d) is incapable, irrespective of form, of being carried by the matter complained of. 33 Similarly by reason of the tenor of the whole of the magazine, on a capacity basis, imputation 6(e) (selling the photographs) is capable of arising. 34 No doubt the plaintiff's grievances are many on the assumption that the publication of the photographs did not have her consent. No doubt her case is and will be that she has been held up to ridicule and contempt. This directs me to the "ridicule" imputations. 35 I have considered the problems in pleading "ridicule" in the light of the structure of the 1974 Defamation Act, the requirement that the imputation be the cause of action and the requirement that the imputation specify an act or condition, which act or condition must be disparaging of the plaintiff (see Haines v Australian Broadcasting Corporation & Ors (unreported, 9 May 1995); Mohan-Wild v John Fairfax Publications Pty Ltd (unreported, 8 August 1997); see also Berkoff v Burchill & Anor (1996) 4 All ER 1008). 36 As to what was described as the "ridicule" imputations, as I have said, they are founded upon the decision of Hunt J in Ettingshausen, above. 37 The relevant part of his Honour's judgment is as follows (at 447E-449D): "I turn now to imputation (b). For convenience, I repeat its terms: '(b) The plaintiff is a person whose genitals have been exposed to the readers of the defendant's magazine 'HQ', a publication with a widespread readership'. This imputation does not assert any moral blame for the exposure upon the plaintiff himself. It is well accepted law that, to be defamatory of a person, the imputation conveyed concerning him need not assert blame if it nevertheless tends to make other persons "shun or avoid" the plaintiff - for example, by attributing to him that he is insane: Morgan v Lingen (1863) 8 LT 800; or by attributing to her that she has been raped: Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 587. The word "imputation" may properly be used with reference to any act or condition asserted of or attributed to the plaintiff: Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 at 91-92; Petritsis v Helenic Herald Pty Ltd [1978] 2 NSWLR 174 at 183; Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 at 675. The condition of the plaintiff which imputation (b) expresses is simply that, as a result of the exposure of his genitals, he has been held up (or exposed) to ridicule . Imputation (b) relies upon the oft quoted statement of principle expressed by Parke B, in Parmiter v Coupland (1840) 6 M and W 105 at 108; 151 ER 340 at 342: "… 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." The phrase "is calculated to injure" used by Parke B should be understood in the sense of "has the effect of injuring" … The case in which the principle appears first to have been discussed in any depth is Burton v Crowell Pub Co 82 F (2d) 154 (1936), a decision of the Second Circuit Court of Appeals. The plaintiff, a widely known gentleman steeplechaser, agreed to pose for photographs to be used in advertisements for a cigarette company. One so used represented the plaintiff 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 Learned Hand, who delivered the judgment of the court, described the effect of the photograph (at 154) as "grotesque, monstrous and obscene". It was held (at 156) that, because the matter complained of was calculated to expose the plaintiff 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. His Honour reasoned the court's decision in the following illuminating passage (at 155): "We dismiss at once so much of the complaint as alleged that the advertisement might be read to say that the plaintiff was deformed, or that he had indecently exposed himself, or was making obscene jokes by means of the legends. Nobody could be fatuous enough to believe any of these things; everybody would at once see that it was the camera, and the camera alone, that had made the unfortunate mistake. If the advertisement is a libel, it is such in spite of the fact that it asserts nothing whatever about the plaintiff, even by the remotest implications. It does not profess to depict him as he is; it does not exaggerate any part of his person so as to suggest that he is deformed; it is patently an optical illusion, and carries its correction on its face as much as though it were a verbal utterance which expressly declared that it was false. It would be hard for words so guarded to carry any sting, but the same is not true of caricatures, and this is an example; for notwithstanding all we have just said, it exposed the plaintiff to overwhelming ridicule. The contrast between the drawn and serious face and the accompanying fantastic and lewd deformity was so extravagant that, though utterly unfair, it in fact made of the plaintiff a preposterously ridiculous spectacle; and the obvious mistake only added to the amusement. 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 (1991) 23 NSWLR 443 at 449 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"'… Applying the principle discussed in Burton v Crowell Pub Co to the present case, I am satisfied that imputation (b) is capable of defaming the plaintiff. Upon the assumption that the ordinary reasonable reader did not conclude that the plaintiff deliberately permitted the photograph to be taken of him with his genitals exposed for reproduction in a publication with a widespread readership - which is the only basis upon which this imputation will fall to be considered - the publication of this imputation is in my view capable of subjecting the entirely blameless plaintiff to a more than a trivial degree of ridicule . It was not seriously argued to the contrary. Accordingly, the imputation is capable of defaming the plaintiff" (emphasis added). 38 It can be seen that the essence of what his Honour there said was that insofar as there is a requirement to attribute an act or condition to the plaintiff, the condition of the plaintiff (in imputations (b) and (g) in this case) is akin to that with which his Honour was concerned in that case namely, that the plaintiff has been held up to ridicule. What I understand his Honour to be there saying is that the publication of itself denotes that the plaintiff could be subjected to substantial ridicule by reason of the publication itself, (the exposure of her breasts). I consider it has to be put in those terms otherwise there is an arguable case that the allocation of the "condition" is founded not upon the terms of imputation itself but rather the consequence of its publication. This is, however, an area which I must confess induces in me some reservations. At common law, the position would be otherwise. I interpolate, as Mr Blackburn remarked, that should the defendant in a common law State wish to justify this kind of "ridicule" imputation (where there is no need for public interest or public benefit), its task would be quite simple. 39 The form of imputation in Ettingshausen allowed to go to trial by his Honour was not subject to review on appeal (Court of Appeal, 13 October 1993, unreported). Ettingshausen was applied in McDonald v The North Queensland Newspaper Co. Limited (1997) 1 Qd. R 62 (Court of Appeal). 40 The point is that to state of a person "the plaintiff is a person whose breasts were exposed to the readers of a pornographic magazine" arguably means nothing disparaging of the person whose breasts were so exposed. It is the context in which they were photographically exposed that gives rise to the defamatory sting namely, that the person is held up to ridicule or contempt and is likely thereby to be shunned and avoided. I do not see any reason in this case to depart from what Hunt J said in Ettingshausen and thus imputations (b) and (g) will be held to be capable of arising and capable of being defamatory. 41 In this case, as was Hunt J in Ettingshausen, I am satisfied that readers of reasonable intelligence may differ as to whether the imputations in fact are conveyed to the ordinary reasonable reader and thus they should go to the jury (Ettingshausen at 447D). 42 In summary therefore, I am satisfied on the application of the standard test as agreed to by both parties that imputations (a), (b), (c), (e), (f) and (g) are capable of arising and are capable of being defamatory. 43 As to imputation (c) in particular, I have already remarked that there is an abundance of material in the publication as a whole which will be available to the jury (in addition to its forming a view as to whether or not it is pornographic) to support the suggestion of the arousal of sexual gratification. I am of a similar view in relation to imputation (e), that there is sufficient material by reference to the awarding of prizes and the like for volunteering for or in permitting of publication of photographs to give rise to the inference of "sale" in imputation 6(e). I have already explained that I am persuaded that the thrust of page 3 in the context of the whole magazine points to the "promotion" rather than the belittling of the sport of water polo. 44 The formal orders are:

Obermann v ACP Publishing Pty Limited

At a glance

Court

Decision date

Before

Source

Judgment (17 paragraphs)

Parties

Cases Cited (6)

Cited By (2)