Can a cartoon or a picture be defamatory?

Can a cartoon character depicting Jabba the Hutt from Star Wars give rise to an action in defamation? Well, according to His Honour, Morzone DCJ in Hallam v O’Connor and Payne [2024] QDC 187, it most definitely can.

As is common in the Australian defamation world, it involved:

1. a plaintiff that was involved in the local government space, namely, the former Chief Executive Officer of the Local Government Association of Queensland; and
2. a defendant who was a former politician.

The plaintiff was Mr Greg Hallam, who sued Mr Rob Payne, the fourth defendant, and Ms Lyn O’Connor, the first defendant. The plaintiff obtained judgment against the first defendant who took no steps to set it aside and challenge liability. Accordingly, the question in respect of the first defendant was merely that of the assessment of damages.

However, the fourth defendant, Mr Payne, denied liability, and accordingly, His Honour had to determine the question of liability. The publication in question for the purposes of this article is a publication by Mr Payne on Facebook on 21 June 2017 to the following effect –

“Thanks to all people supporting a Queensland ICAC. Those in power rarely welcome scrutiny, but the ordinary decent people in government roles (who are often victims) need us to maintain the rage!”.

Publication of the above Facebook post by Mr Payne was conceded. All that his Honour was required then, to establish was whether the Facebook post:

1. was of and concerning Mr Hallam; and
2. carried the defamatory imputations pleaded, or similar imputations not differing in substance.

There was no requirement for His Honour to determine the issue of serious harm, as the defamatory publications occurred prior to the uniform defamation amendments which took effect on 1 July 2021 in Queensland.

Was the Jabba the Hutt caricature post of and concerning the plaintiff?

Mr Hallam’s case as to identification was a contextual one, based upon the existence of multiple extrinsic facts. This was because Mr Hallam’s name was not used in any of the five (5) publications Mr Hallam pleaded against Mr Payne. As such, express identification could not be established.

Some of the extrinsic facts relied upon to establish that the Facebook post was of and concerning the Mr Hallam included, but were not limited to:

• Mr Hallam’s physical appearance;

• that the acronym LGAQ is known in the public domain as being a reference to the Local Government Association of Queensland; and

• the nature of Mr Payne’s Facebook page, in that, it promoted matters of politics, and thus, would attract a readership that have an interest in politics.

His Honour found, in particular at [19] that the caricature of Jabba the Hutt was persuasive evidence of identification, and further reinforced an ordinary reasonable reader to identify the plaintiff by the use of the words “LGAQ” on its shirt.

Additionally, Mr Hallam called three (3) witnesses who gave direct evidence that they recognised the Facebook post as being of and concerning him.

Accordingly, His Honour found at [25]. That the Facebook post, and the other four (4) pleaded publications (being 2 to 5) did, on the balance of probabilities, identify Mr Hallam.

The imputations

Mr Hallam pleaded seven (7) imputations said to have arose out of the Facebook post. They were as follows:

• the plaintiff was a powerful crime boss; and

• further and alternatively, the plaintiff operated through the LGAQ as a cartel, a profitable criminal empire; and

• further and alternatively, the plaintiff was corrupt; and

• further and alternatively, the plaintiff sought to corruptly influence public officials including elected members of the Queensland Parliament; and

• further and alternatively, the plaintiff had overborne the ethical standards which the LGAQ should have provided to local government; and

• further and alternatively, the plaintiff as the CEO of the LGAQ, did not welcome appropriate scrutiny of himself or the LGAQ; and

• further and alternatively, the plaintiff as CEO of the LGAQ, contributed to ordinary decent people in government roles becoming victims by the misuse of power.

His Honour found that:

• imputations (a) and (b) were not made out, as it would require an unreasonable interpretation, by the ordinary, reasonable reader, with knowledge of the Jabba the Hutt character, to reach that conclusion.

• imputations (c) and (d) were capable of being conveyed, and were conveyed, by the use of the words ‘ICAC’ within the Facebook post, being understood by the ordinary, reasonable reader as a reference to the Independent Commission Against Corruption; and

• that the remaining imputations (e), (f) and (g) were made out for, amongst other reasons, the symbolism of the chain used in the caricature, the use of the words ‘victim’ and ‘those in power rarely welcome increased scrutiny’ (as applicable).

Damages

A good part of the judgment concerned the assessment of general, aggravated and special damages. His Honour assessed damages as against the fourth defendant as follows:

General Damages:                               $100,000.00

Aggravated Damages:                       $25,000.00

Special Damages:                                 $3,798.00

Interest on General Damages:       $27,675.53

Interest on Special Damages:        $805.38

Total:                                                              $157,260.91

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