What is the ordinary reasonable person test in defamation?

The ordinary reasonable person test in defamation law determines if a statement would harm a person’s reputation in the eyes of a hypothetical “ordinary reasonable person.”

By John Christian – January 23, 2023
defamation on social media

Firstly, what is defamation in Queensland?  

Defamation in Queensland is where serious harm has occurred to a business or to an individual’s reputation as a result of someone publishing negative comments to an audience. The term “publish” in relation to defamation doesn’t necessarily mean to be published in a newspaper, for example. Regardless of whether the defamatory comments are spoken aloud (slander) to a third party or posted online in a Google review or a Tweet (libel), defamation laws operate exactly the same, to protect you from harm in all forms.  

Slander versus libel

The legal distinction between slander and libel was effectively abolished when uniform legislation reforms took place in Australia in 2005. The terms are still commonly heard in US law but in Australia, the law is now clear: all defamation is defamation and all forms will be dealt with in the same way under the law. Slander is where defamatory remarks are made by a person, out loud (and not recorded), to an audience (even if that audience is only one other person who is not the defamed person). Libel is the permanent publication of defamatory comments. This may take the written form of a newspaper article or Facebook post, or it could also be in an audio version such as a podcast or in a song or spoken on a TV program. The distinction is that libel is distributed in permanent form, able to be listened to, read or otherwise accessed on an ongoing basis, whereas slander is fleeting and a non-permanent statement. 100 years ago, it’s likely that defamation cases may have arisen more often in the spoken form of slander. As our population progresses into an increasingly technology-centred, online society, it’s inevitable that a vast majority of cases are now falling more towards the libel category. With all of that having been said, it’s vital to reiterate that slander v libel is no longer a necessary conversation when pursuing a defamation case in Queensland.  

Do defamation cases happen in State or Federal Court?

The states and territories of Australia each govern their own legislation regarding defamation laws, however, in recent years our separate jurisdictions, including Queensland, have undertaken the task of legislating significant amendments to bring uniformity to defamation laws across the country. The Defamation Act 2005 (Qld) replaced its archaic predecessor (which had been around since 1889) promoting much-needed standardisation across the laws of defamation in Australian states and territories.  

Is defamation a civil or criminal matter?

Defamation is almost exclusively a civil matter. That means that it is practically always one party suing another party for defaming them, rather than the police bringing a case against a person who has defamed another person (or business). Whilst criminal defamation definitely exists in Queensland’s Criminal Code, charges are incredibly rare since the introduction of the Defamation Act 2005. In fact, the criminal statute itself defers to its civil counterpart considerably to provide definitions for words such as ‘defamatory’ and ‘publish’. When a judge has been convinced that defamation has occurred in a Queensland civil case, they will seek to provide ‘remedies’ as a means of making things right for the person who has been defamed. Remedies may come in the form of monetary compensation or other non-financial means.  

Back to the ‘ordinary reasonable person test:

For a court to rule that published material is in fact defamation, it must be proven that the alleged defamatory material caused or could cause an ordinary reasonable person to think less of the person about whom it is written or spoken, thus causing significant reputational harm. This, of course, has been cause for considerable and lengthy discussion in court, as the characteristics of what or who may constitute an ordinary reasonable person may be quite varied, depending on who you ask. Something which may be deemed ‘reasonable’ to one person may be considered entirely ‘unreasonable’ to another person.  

Where it is necessary for a decision-maker (such as a judge) to consider an objective standard when coming to their decision about whether an action by a party was acceptable or unacceptable, they apply what is known as the ‘ordinary and reasonable person’ test. In a defamation case, the action being assessed as reasonable or unreasonable is the average person’s interpretation of allegedly defamatory remarks: Do they think less of the subject person because of the remarks? The ‘ordinary and reasonable person’ is an entirely hypothetical person who accurately represents the average, rational member of a community. It is a standard that assists in providing the court with a measure of objectivity. In Queensland, this measure of objectivity will take into account the immediate community when determining if the audience that the defamatory material was published to were an accurate reflection of the ordinary reasonable person in Queensland.  

How can Victor Legal help?

Victor Legal are leading specialist defamation lawyer in Brisbane. If you or your business have been defamed in Brisbane and you’re suffering from harm – financial or otherwise – because of it, it’s worth reaching out to our team. We advocate tirelessly for our clients to achieve the remedies they are due, whether that’s by way of financial compensation, an apology, or a court order requiring the defamatory material to be removed and never repeated again. There are a number of defences that might be used against your case, and it’s important to be able to address and disprove these defences as early as possible. Defamation law can be complex in nature, so it’s essential that you have a skilled, experienced defamation lawyer on your side. Contact Victor Legal today.   

Article by John Christian, Principal Lawyer, Founder and Director of Victor Legal

John has extensive experience in complex civil and commercial dispute resolution and litigation matters, specialising in:

Building and construction disputes
Complex litigation
Contract drafting and review
Dispute Resolution
Commercial Law
Corporate insolvency
Securities and caveats
Debt collection
Contract disputes
Commercial and risk mitigation advice

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