In the Federal Court decision of V’landys v Australian Broadcasting Corporation (No 3) [2021] FCA 500, Chief Executive Officer and Board member of Racing NSW, Mr Peter V’landys AM (Mr V’landys), was unsuccessful in his defamation action against the Australian Broadcasting Corporation (ABC).
The Facts
On 17 October 2019, the ABC broadcasted an episode on their flagship news and current affairs program, 7.30, titled ‘The Final Race: The dark side of the horse racing industry’. The episode revealed findings of a two-year long investigation into the horse racing industry in Australia.
Mr V’landys claimed the program made four defamatory imputations including that he, as Chief Executive Officer of Racing NSW:
- Callously permitted the wholesale slaughter of thoroughbred horses.
- Ignored the cruelty to which thoroughbred horses were subjected to in a Queensland abattoir.
- Dishonestly asserted that no racehorses were sent to knackeries for slaughter in New South Wales when he knew that act to be untrue.
- Dishonestly asserted that Racing NSW cared about the welfare of thoroughbred horses and took adequate steps to protect their welfare when he knew that was untrue.[1]
Conclusion
The Court found that none of the four imputations allegedly contained in the program were conveyed. It said that the “powerful and dramatic nature of the report” would have been deeply embarrassing for Mr V’landys and the horse racing industry.[2] Despite this, it found that Mr V’landys could not succeed in his defamation action as the pleaded imputations did not fall within what it considered ‘defamatory’.
Defamation – Imputations
The Court outlined that an applicant in defamation proceedings bears the onus of proving, on the balance of probabilities, that the imputations or “meanings” asserted were conveyed by the publications in question.[3] The applicant is also required to specify and plead the defamatory imputations or “meanings” that are alleged to have been conveyed to the Court.[4]
The Court found that the principles to be applied in determining whether a publication conveyed defamatory imputations are well established. .
The various principles are as follows:
- the question of whether the defamatory meanings were conveyed is a question of fact;
- the relevant question is whether the publication would have conveyed the alleged meanings to an ordinary reasonable person. Where the publication is in the form of a broadcast, the Court must place itself in the shoes of the ordinary reasonable viewer. In contrast, where the publication is in writing, the Court must put itself in the shoes of the ordinary reasonable reader;
- the ordinary reasonable person is an individual with certain traits, qualities, or characteristics. They are taken to be of fair intelligence, experience and education;
- the meaning conveyed to the ordinary reasonable person is often described as “the natural and ordinary meaning”;
- in determining what the ordinary reasonable person would understand from the imputations, the ordinary reasonable person is seen as an individual that “reads between the lines”;
- the mode or manner of the publication can be relevant in consideration in determining what was conveyed to the ordinary reasonable person;
- the relevant publication has to be read or viewed as a whole and each alleged imputation must be considered in the context of the entire publication;
- the overall tone or tenor of the publication must be considered when analysing the meaning that an ordinary reasonable person would attribute to a publication;
- the Court must determine one single objective meaning of the alleged imputations in light of the publication;
- the intention of the publisher is irrelevant in determining the meanings conveyed; and,
- the way the publication was understood by any individual is irrelevant in determining what meaning was conveyed to the ordinary reasonable person.
Practical insights
The scope of what is or is not defamatory continues to be a moveable feast and perhaps rightly so. If you are concerned that content you are creating may be defamatory or you are concerned that statements made about you are defamatory, please do not hesitate to speak to a member of Coleman Greig’s Intellectual Property team or Commercial Advice team, who would be more than happy to assist you.
