Responding to the financial abuse of older people - Loddon ...

The common law has formulated the test of what is defamatory by reference to an
objective or reasonable standard. The following formulations have been applied:
(i)
(ii)
Parmiter v Coupland (1840) 6 M&W 105; 151 ER 340: a publication is defamatory
if without justification or lawful excuse, it is calculated to injure the reputation
of another by exposing him to hatred, contempt or ridicule.
Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) TLR 581: a publication
is defamatory if it tends to make the plaintiff be shunned and avoided and that
without any moral discredit on the plaintiff’s part.
(iii) Slim v Stretch [1936] 2 All ER 1237: a publication is defamatory if it tends to lower
the plaintiff in the estimation of right-thinking members of society in general.
9.3 Meaning of publication
The essential question is frequently not whether the plaintiff has been defamed, but
whether the defendant can avail itself of a defence whereby the publication was lawful.
The criteria for publication are extremely broad and do not necessitate the bank actually
publishing the person’s name. Further, the test of whether a publication is defamatory is
an objective one.
Whether publication has occurred is not determined by the fact that the plaintiff
understood the publication to be defamatory. Nor is it determined by whether the
persons to whom it is published actually understood it innocently or in a
defamatory sense.
The test is whether the publication would have been likely to cause the ordinary
reasonable man or woman to have thought the less of the plaintiff.
The process by which the jury decides whether the imputation is defamatory is described
by Brennan J in Reader’s Digest Services Pty Ltd v Lamb:
[T]he issue of libel or no libel can be determined by asking whether hypothetical referees
— Lord Selborne’s reasonable men or Lord Atkin’s right-thinking members of society
generally or Lord Reid’s ordinary men not avid for scandal — would understand the
published words in a defamatory sense. That simple question embraces two elements of
the cause of action: the meaning of the words used (the imputation) and the defamatory
character of the imputation. 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 (Miller v David, Myroft v Sleight, Tolley v
JS Fry & Sons Ltd). 101
41