A key element in a defamation case is the identification of the person being defamed.
In this blog post, I explore the principles surrounding identification in defamation cases, drawing from the Australian decision in Burston v Hanson [2022] FCA 1235 and other relevant cases.
1. The Requirement of Identification
The publication in question must be “of and concerning” the person who sues for defamation (Plymouth Brethren (Exclusive Brethren) Christian Church v the Age Company Ltd [2018] NSWCA 95; 97 NSWLR 739).
However, it is not necessary for the person alleging defamation to be named in the publication.
It is sufficient if the words used would reasonably lead persons acquainted with the person who sues to believe that they are being referred to (David Syme & Co v Canavan [1918] HCA 50; 25 CLR 234).
2. The Perspective of a Layperson
When considering identification in defamation cases, it is crucial to adopt the perspective of a layperson. This approach acknowledges that laypeople may be more prone to implications and loose thinking than legal professionals (Plymouth Brethren at [68], [76]–[77]).
The trial judge, acting as the tribunal of fact, is responsible for determining if a lay reader, familiar with the person claiming defamation, would reasonably understand that the individual in question was the subject of the published material (Plymouth Brethren at [77]).
3. The Substance of Identification
In determining identification in defamation cases, the emphasis should be placed on the substance of the basis that leads to identification, steering clear of unnecessary technicalities and excessive analysis (Plymouth Brethren at [90]).
The publisher's intention, even when it comes to their ability to identify the subject, is not relevant since the assessment is based on an objective approach rather than a subjective one (Plymouth Brethren at [61], [82]–[92]).
4. Mistaken Identification and Subsequently Acquired Information
A reasonable reader may arrive at a mistaken identification, provided that it stems from the content of the published material being complained about (Plymouth Brethren at [93]).
The identification does not necessarily have to take place at the time of publication and can be the product of subsequently acquired extrinsic information (Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237; 91 NSWLR 485 at [76] –[78]).
5. The Onus of Proof
If the person being sued is not explicitly named in the publication, determining identification during the factual determination stage depends on the sufficiency of the basis for identification being asserted in the legal pleadings, as well as the adequacy of the evidence provided to support those pleadings.
The onus is on the person suing (David Syme at 238; Pedavoli at [46]).
Key take-aways
In defamation cases, the identification of the person being defamed is a crucial element.
As seen in the cases discussed above, the courts focus on the substance of the basis for identification and the perspective of a layperson when making decisions.
Cases referred to in this blog post:
Burston v Hanson [2022] FCA 1235
Plymouth Brethren (Exclusive Brethren) Christian Church v the Age Company Ltd [2018] NSWCA 95; 97 NSWLR 739
Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845
Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237; 91 NSWLR 485
David Syme & Co v Canavan [1918] HCA 50; 25 CLR 234