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A former president of a cultural association successfully sued the Executive Members of the association in defamation, notwithstanding the existence of an earlier anonymous publication of similar content.
In issue
- The Court was required to determine whether the applicant had suffered serious harm to his reputation and, if so, whether that was caused by the publication of defamatory matter by the respondents.
The background
Mr Satnam Singh (applicant) was the former President of the Canberra Sikh Association (Association). The respondents were members of the Executive Committee of the Association.
On 20 February 2023, an anonymous email was sent to 176 members of the Association. The email contained allegations that the applicant had been diagnosed with a contagious sexually transmitted disease (STD). The email warned members of the Association (and the wider Sikh community) to stay away from the applicant and called for the applicant to resign from his position as President of the Association.
Over the course of the following months, the allegations against the applicant became the subject of much speculation and controversy within the Association and the wider community. It was not in dispute between the parties that the applicants' reputation had suffered significantly due to that controversy.
On 2 June 2023, a letter was sent from the email address of the Secretary of the Association to the membership. The letter was on the Association's letterhead and was signed by the respondents, who were five of the nine members of the Executive Committee. The letter did not directly refer to the anonymous email or the controversy arising from it.
On 18 October 2023, at a meeting of the Association, the applicant sought to speak but was prevented from doing so. The letter was projected onto a screen. The applicant then resigned as President of the Association.
The letter was the catalyst for the applicant commencing proceedings in defamation against the respondents.
The decision at trial
The main issue for the Court was untangling the serious harm element to the defamation cause of action, in the context of competing causes of harm to the applicant's reputation. It was uncontroversial that the applicant's reputation had suffered serious harm. The real question was what caused that harm.
The applicant argued the natural and ordinary meaning of the words in the letter (as a reasonable person would interpret those words) conveyed imputations harmful to his reputation. He contended that by the time the letter was circulated, the impact of the anonymous email was spent, such that the allegations in the email had been given no credence and no harm had been caused to the applicants' reputation. The letter was, in the applicant's submission, a new and independent event making serious but non-specific allegations against a background of an unsullied reputation.
The respondents argued that the applicant's reputation had been destroyed by the anonymous allegations raised in the email. They claimed that the applicant was already unfit to hold the office of President, because he had not answered the allegations that he had contracted an STD. In the circumstances, the respondents argued that the vague and non-specific insinuations contained within the letter could not possibly have had any additional impact on the applicants' reputation.
The Court applied the principles in Associated Newspaper Ltd v Dingle [1964] AC 371, which illustrates the principle that questions of causation arise independently of any need to prove serious harm.
The difficulty of isolating the impact of one of several publications has led Courts in some defamation cases to adopt (by analogy) the approaches to determining causation in cases involving indivisible physical injuries.
The so-called Dingle principle was expressed by Devlin LJ in Dingle v Associated Newspapers Ltd [1961] 2 QB 162 at 189-190 in the following terms :
If a man reads four newspapers at breakfast and reads substantially the same libel in each, liability does not depend on which paper he opens first. Perhaps one newspaper influences him more than another, but unless he can say he disregarded one altogether, then each is a substantial cause of the damage done to the plaintiff in his eyes.
The Courts recognise that the Dingle principle is highly fact dependent and needs to be applied on a case-by-case basis. Save for when there is a proper basis for concluding that several different publications are each a cause of the total harm suffered by a complainant (at least in the sense of having materially contributed to it), the proper approach is for the Court to ascertain, as best it can, the consequences attributable to each source of harm.
As a preliminary issue, the applicant successfully established that the letter contained defamatory content. The Court was satisfied that the letter conveyed three 'surviving imputations':
- The applicant had engaged in conduct that was not in the best interests of the Association.
- The applicant had potentially compromised the integrity and transparency of the Association.
- The applicant was unfit to be a member of the Association, in that his continued membership of the Association may be suspended or terminated.
Being satisfied that the letter conveyed those imputations, the Court turned to the central question of the competing causes of harm as between the anonymous email and the letter. The Court rejected the respondents' argument that the applicant's reputation had already been irretrievably damaged by the email, finding instead that the letter intensified the harm caused by the earlier allegations.
The Court determined that the letter lent credibility to the allegations in the email, which had previously been regarded as unreliable by many members of the community. In the Court's assessment, this credibility shift caused serious harm to the applicant's reputation. The Court dismissed the respondents' submissions that the gravity of the surviving imputations was low, that the letter was only a personal communication by five members of the Executive Committee, and that it was published to members already aware of the anonymous email. The Court considered that those factors did not diminish the serious harm caused by the letter.
The Court concluded that the applicant's reputation was harmed not by new allegations in the letter but by the reinforcement and intensification of the earlier allegations made in the anonymous email.
Implications for you
The decision reinforces the need to carefully consider the content of written publications in interconnected communities. The case shows that, in certain circumstances, it is no defence to a claim for defamation to point towards earlier publications as the cause of serious harm to a complainant's reputation. The judgment reinforces that a party may still be liable for defamation where there may be competing causes of harm (based upon the authority in Dingle and subsequent decisions adopting the Dingle principle). However, it also stresses that isolating the impact of one of several publications is highly fact dependant, and that the circumstances in which harm to a person's reputation is an 'indivisible' injury may be more limited than has been assumed. As a result, except where there is a proper basis for concluding that a number of different publications are in fact each a cause of the total harm suffered by a plaintiff, the proper approach is for the Court to undertake a broad assessment of any contributing publication and to isolate, as best as possible, the consequences of each publication.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
