Identification in Defamation Law: A Brief Australian Overview
In Australian defamation law, identification is a fundamental requirement that must be established before a person or business can succeed in a defamation claim. Identification concerns whether the allegedly defamatory material is understood to refer to the plaintiff, either directly or indirectly.
A person does not need to be named expressly to be defamed. It is sufficient if ordinary readers, listeners, or viewers would reasonably understand that the publication refers to the plaintiff. This article explains how identification in defamation law operates in Australian, including direct and indirect identification, the role of extrinsic facts, and how courts assess whether the requirement has been satisfied.
What Is Identification in Defamation Law?
Identification in defamation law refers to whether defamatory material is “of and concerning” the plaintiff. In other words, the law asks whether the publication would be understood by at least one ordinary recipient as referring to the plaintiff.
Identification is one of the essential elements of a defamation claim, alongside publication, defamatory meaning, and serious harm. If identification cannot be established, a defamation claim will fail, regardless of how offensive or damaging the statement may be.
The tort of defamation requires the plaintiff to establish the following (except for Western Australia, which does not have the statutory element of serious harm):
- that the matter was published;
- that the matter was of and concerning (or identified), the plaintiff, whether directly or indirectly via other facts known to the person who read, heard or understood the matter;
- that it carried a defamatory imputation i.e., that it was defamatory; and
- that the publication caused, or is likely to cause, serious harm to the plaintiff’s reputation.
In this article, we examine the element of identification. It is a necessary aspect of any claim in defamation, as if the defamatory material cannot be said to identify the plaintiffthen there is no cause of action upon which the plaintiff can sue the publish.
More often than not, the element of identification is directly made out, i.e., by reason of the inclusion of the plaintiff’s name. However, sometimes, the publisher does not use the plaintiff’s name, but may rather describe them (for example, by the use of a title “The Prime Minister”), from which the reader or listener can be expected to readily understand who the statement if referring to. Alternatively, the defamatory material may include facts known to some people (such as intimate relationship details), not known by the general public, but, if read by those persons (with the requisite knowledge), they are able to identify the plaintiff from those facts.
Accordingly, the element of identification usually takes two (2) forms at law, and they are:
Direct and Indirect Identification
Identification can occur in two primary ways: direct identification and indirect identification.
Direct Identification
Direct identification occurs where the plaintiff is clearly identified in the publication. This may include:
- the use of the plaintiff’s full name;
- reference to a business name;
- use of a photograph or video image; or
- a combination of identifying details that clearly point to the plaintiff.
Where direct identification is present, this element of defamation law is usually straightforward.
Indirect Identification
Indirect identification arises where the plaintiff is not named, but is nonetheless identifiable through descriptions or contextual clues. Courts recognise that a person may be defamed even if their name is not mentioned.
Examples of indirect identification include:
- references to a person’s role, occupation, or position;
- descriptions of personal characteristics or conduct;
- references to a small or identifiable group;
- circumstances where readers familiar with the plaintiff would recognise them.
The test is whether ordinary recipients, using common sense and their own knowledge, would reasonably understand the material to refer to the plaintiff.
Identification Through Extrinsic Facts
Identification may also be established through extrinsic facts. Extrinsic facts are matters not contained within the publication itself, but known to members of the audience who read, hear, or view it.
Important considerations
At law, a statement about a group of persons (even if it is defamatory to that group of persons), is not defamatory. This is because it must be capable of harming the reputation of the individual rather than the reputations of various members of a class or group. An example of this would be political parties. A defamatory comment about a political party is not defamatory of an individual member or politician of that political party, unless the material provided otherwise.
The Role of Extrinsic Facts
Sometimes, the words themselves are neutral, but combined with extrinsic facts, they point to the plaintiff.
Example: A newspaper says, “A local teacher has been accused of aggravated robbery.” If there is only one teacher in the town, it can be inferred that readers of the newspaper will be able to readily identify them.
A similar example occurred in Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674, which involved a newspaper publication by the Sydney Morning Herald with the heading –
“Female teacher quits top Catholic school after claim of sex with boys”.
Even though the teacher was not named in the article, the judge ultimately found that the article was of and concerning (and identified) the plaintiff.
Importantly, it is not necessary that everyone who sees the publication identifies the plaintiff. It is sufficient that some recipients with relevant knowledge do so.
Group Identification and Defamation
Statements made about groups can raise complex identification issues. Generally, defamation law does not permit claims by individuals merely because they belong to a large or indeterminate group.
However, identification may still be established where:
- the group is small and identifiable; or
- the circumstances allow a specific individual within the group to be singled out.
Whether group defamation is actionable depends on the size of the group, the wording of the publication, and the surrounding context.
Identification of Companies and Businesses
Businesses and corporations may also be identified for the purposes of defamation. Identification may occur where:
- the business is named;
- a trading name is used;
- the business is identifiable through industry or geographic references.
For corporate plaintiffs, identification must still be proven alongside other statutory requirements, including serious harm to reputation.
How Courts Assess Identification
Australian courts apply an objective test when assessing identification in defamation law. The court considers:
- the natural and ordinary meaning of the words;
- how an ordinary, reasonable reader would understand the publication;
- whether identification arises directly or by implication;
- the role of extrinsic facts known to recipients.
Courts do not strain to find identification, but they also recognise that defamatory meaning can arise subtly and indirectly.
Why Identification Matters in Defamation Claims
Identification is often a contested issue in defamation proceedings, particularly where:
- the plaintiff is not named;
- the publication uses vague or coded language;
- the defendant argues that the material refers to someone else, or no one at all.
If identification cannot be established, the claim will fail regardless of the seriousness of the allegations. For this reason, identification is often one of the first elements examined by lawyers when assessing whether a defamation claim is viable.
When Should You Seek Legal Advice?
If you believe defamatory material refers to you or your business — even if you are not named — it is important to obtain legal advice promptly. A lawyer can assess whether identification is likely to be established, consider how courts may interpret the publication, and advise on the appropriate steps to protect your reputation.
Early advice is particularly important where publications are online, widely shared, or continue to cause reputational harm.
Conclusion
The element of identification is central to defamation law in Australia. Without it, a plaintiff cannot succeed, irrespective of the defamatory nature of the material. The material may be extremely defamatory, but not at all capable of identify the plaintiff, with or without the assistance of extrinsic facts known to the recipient(s).
From explicit naming to subtle innuendo, fictional depictions to social media posts, identification can take many forms.
For plaintiffs, proving identification in defamation law often requires evidence of how readers understood the publication. For defendants, avoiding vague or suggestive language about persons can also reduce the risk of unintended identification (intention being irrelevant to the issue of identification).
How Allen Law Can Help
Allen Law regularly advises individuals and businesses on defamation matters, including complex identification issues with regards to identification in defamation law. We assist clients to assess whether defamatory material identifies them, evaluate the strength of potential claims, and take appropriate steps to protect their reputation.
If you are concerned that a publication identifies you or your business in a defamatory way, obtaining advice early can significantly improve outcomes.
Frequently Asked Questions About Identification in Defamation Law
What does “of and concerning” mean in defamation law?
“Of and concerning” means the defamatory material must be understood by recipients as referring to the plaintiff, either directly or indirectly.
Can I be defamed if I am not named?
Yes. A person may be identified through descriptions, context, or extrinsic facts even if their name is not used.
Do all readers need to identify me?
No. It is sufficient if some ordinary recipients who know relevant background facts understand the publication to refer to you.
Can businesses be identified in defamation claims?
Yes. Companies and businesses may be identified through names, trading styles, or contextual references.
Contact Allen Law
If you believe defamatory material identifies you or your business, speaking with experienced defamation lawyers early can help protect your reputation.
Phone: (03) 7020 6563
Email: enquiries@allenlawyers.com.au
Website: www.allenlawyers.com.au
Disclaimer: This article is general in nature and does not constitute legal advice. Please contact Allen Law for advice tailored to your particular situation.
