Academic journal article University of Queensland Law Journal

Not So Straight-Talking: How Defamation Law Should Treat Imputations of Homosexuality

Academic journal article University of Queensland Law Journal

Not So Straight-Talking: How Defamation Law Should Treat Imputations of Homosexuality

Article excerpt

I INTRODUCTION

As I write this article, homosexuality is once again the subject of intense public discussion. Federal politicians and lobby groups have been debating the merits of the Safe Schools program, (1) the proposal for a plebiscite on same-sex marriage has been evaluated economically and politically, (2) and, in the lead-up to the 2016 Gay and Lesbian Mardi Gras, the NSW Parliament and Police publicly apologised for the heavy-handed crackdown on Mardi Gras marchers back in 1978. (3) Reflecting on these events, it seems that the full, free, and frank discussion of homosexuality is an accepted aspect of contemporary public discourse in Australia. However, within the restrictions imposed by defamation law there remain certain legal risks involved with speaking openly about this topic, specifically there are limitations around stating or implying that someone is homosexual or has engaged in homosexual conduct. The law in this area has recently been reconfirmed in the 2015 decision of Gluyas v Canby, (4) which held that although 'each case will turn upon its own facts' an imputation that someone is homosexual can have the capacity to be defamatory."

This article critically analyses Australian defamation law's treatment of imputations of homosexuality and argues that such imputations should no longer be regarded as being legally capable of being defamatory. This argument is worked through in the next two parts. In Part II the relevant general principles of defamation law are explained and the key Australian cases regarding imputations of homosexuality are outlined. In Part 111 the legal treatment of imputations of homosexuality is critiqued for various reasons relating to the symbolic effect of the law and the problematic practical ways in which these imputations have operated in recent cases.

II DEFAMATION LAW

Defamation law exists in order to protect a person's reputation from harm caused by the communications of others and to provide compensation for any such harm suffered. (6) A successful action for defamation requires that a plaintiff prove that a communication has been published to a person or persons other than them, that the communication identifies them and that the communication contains at least one imputation that is defamatory of them. (7) An 'imputation' is an attribution of 'some act or condition" to the plaintiff. (8) and is 'usually in the nature of an accusation or charge'. (9) An imputation can arise on the basis of the 'ordinary and natural' meaning (10) of the communication as understood by the ordinary reasonable reader." Alternatively, an imputation can arise on the basis of 'true innuendo', a situation where 'special facts, known to those to whom the matter was published ... would lead a reasonable person knowing those facts to conclude that the words have another ... meaning'. (12)

The focus of this article is on the scope of defamatory meaning, namely, what kinds of imputations are legally treated as being defamatory. Despite the introduction of the so-called National Uniform Defamation Laws (NUDL) (13) this remains an issue that is 'determined in accordance with the common law'. (14) This Part will first address the general question of what kinds of imputations are legally capable of being defamatory and will then look specifically at imputations of homosexuality.

A Scope of Defamatory Meaning

The High Court's most recent restatement of the law regarding the scope of defamatory meaning is found in the 2009 case of Radio 2UE Sydney v Chesterton, in which the Court held that the 'general test for defamation' is 'whether a person is lowered in the eyes of right-thinking persons'. (15) The Court noted that 'disparagement of reputation ... is the essence of an action for defamation', (16) and that the general test is one that is concerned with determining 'whether injury to reputation has occurred'. (17) The Court also recognised that the general test can and has been phrased in multiple different ways, such as 'whether a person's standing in the community, or the estimation in which people hold that person, has been lowered' and 'whether the imputation is likely to cause people to think the less of a plaintiff. …

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