Defamation: Scope, Elements, Imputations, Defences, and Remedies

Topic: Defamation
Tort Law-Defamation
Student name
College/affiliation
LEGAL MEMORANDUM

Topic: Defamation
To: Judy Green, Senior Partner
From: Sathya Vel, Junior Associate
Date: 16 April, 2019
File No: 2019-14-Salo
Re: Internal Memo
a) Scope of Advice
You have requested for advice regarding our client, Marina Salo on whether she will be
successful in establishing a defamation claim against AAmazing Webhosting (AW) and Patrick
Holtz. It is also mentioned in your memo that I provide at least two statutory defences and
available remedies and provide a recommendation on whether to force AW to remove the article
from their website1.
b) Defamatory Matter (first element)
The plaintiff must prove that the matter conveys a defamatory imputation(s). The plaintiff has
the burden of proving that these imputations are deemed to be defamatory. This is a requirement
both at common law and as provided for in the statute2.
c) Publication (second element)
The matter must be published by the defendant to at least another person other than the plaintiff.
Marina has established that over 13,000 people have visited the webpage where allegations
against her have been published. 3
1 Stern v. Marshall, 131 S. Ct. 2594, 564 A.U. 462, 180 L. Ed. 2d 475 (2011).
2 Staub v. Proctor Hosp., 131 S. Ct. 1186, 562 A.U. 411, 179 L. Ed. 2d 144 (2011).
3 Alaburic V., Bajle K., etl al “Defining Defamation: Principles on Freedom of Expression and Protection of
Reputation.

Topic: Defamation
d) Capable of identifying plaintiff as person defamed (third element)
The ordinary reasonable person must be able to identify that the defamatory matter is clearly
targeted at the plaintiff.
e) Defamatory Imputations
The imputations that can be obtained from the website “Qld Corruption Files” is Salo is a key
person involved in a student cheating scandal, that she is very undisciplined and promiscuous.
The meanings gathered from these imputations imply that Salo is disruptive and distracts people
on campus, she is academically dishonest and is unoriginal with her work and she is also a
philanderer. These meanings extracted are false innuendos since extrinsic facts are not needed to
support these meanings. These imputations are defamatory, and they will cause the ordinary
reasonable person to think less of her. The principle of examining the imputations through the
ordinary reasonable person is the objective test which is used to convey that the imputations are
capable of been conveyed and are capable of being defamatory according to the judgement in
Radio 2UE Sydney Pty Ltd v Chesterton. 4
In the corruption file and the billboard, the imputation identified is that the charity providing
assistance to the homeless in Logan is vulnerable to corruption because of the CEO’s activities
and that the CEO uses the money for the charity for some other purpose. This is true innuendo
and requires knowledge of extrinsic facts. 5
f) Conclusion
Salo can establish a successful defamation claim against Holtz and AW since all of the
elements are satisfied. In Annexure A, which is the corruption file, she is clearly identified
as the person being defamed, the imputations identified through false and true innuendo are
deemed to be defamatory and the matter is published through an electronic medium, which
is a webpage.
4 Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460.
5 Cornes v The Ten Group Pty Ltd (2011) 114 SASR 1.

Topic: Defamation
g) Statutory Defences
i) Honest Opinion
The defence of honest opinion can be used if these three elements are satisfied:
(1) the defendant must prove that the matter is an expression of his or her opinion rather than a
statement of fact.
(2) The opinion of the matter is related to public interest.
(3) The opinion of the defendant is based on proper material. Proper material is defined as
material that is (a) substantially true; or (b) published on the occasion of qualified or absolute
privilege; or (c) the matter was published on an occasion in which there is the protection of a
defence under this section or section 28 and 29.6
In this instance, Holtz cannot claim that whatever he said was an honest opinion. This is so since,
he had indicated to Marina that he will payback no matter the period. Also, the massage he left
marine the revenge he had against her. Therefore, since there is evidence of malicious, the
defence of honest opinion cannot be relied on be Holtz. 7
ii) Defence of innocent dissemination
(1) It is a defence to the publication of defamatory matter if the defendant proves that—
(a) the defendant published the matter merely in the capacity, or as an employee or agent, of a
subordinate distributor8; and
6 Defamation Act 2005 (Qld) s 31(1).
7Kenyon Andrew, “Six Years of Australian Uniform Defamation Law: Damages, Opinion and
Defence Meanings.
8 Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 569 A.U. 108, 185 L. Ed. 2d 671 (2013).