Imputation or Publication: The Cause of Action in Defamation Law

Abstract:     
The basis of the cause of action in defamation varies between different Australian jurisdictions. Defamation is based on the publication at common law, while in NSW the action is based on each pleaded imputation. Drawing on empirical research into defamation litigation, the article suggests this apparently minor and technical difference is an important influence on the complexity of NSW litigation. The NSW approach does not offer the benefits of precision suggested in some commentary. Instead, it appears to restrict the scope of legal speech. Empirical research suggests that pleading disputes happen far more frequently in NSW than in Victoria for little, if any, benefit. The article critically reviews the NSW Law Reform Commission's repeated support for the imputation-based cause of action, and argues that it should not prevent Australian law moving to a cause of action based on published material. Although the article focuses on NSW and Victorian defamation law and practice, the issues are relevant more widely in Australia and in comparable jurisdictions internationally. The cause of action's basis - in the imputations or the publication - should be seen as an important aspect of how speech is protected under defamation law. A cause of action based on the publication should be recognised as preferable in any reforms to defamation law.

Keywords: defamation, Australia, New South Wales, Victoria, empirical research, publication, imputation, cause of action, litigation, legal speech, NSW Law Reform Commission

JEL Classifications: K1, K10, K13, K19, K41

Accepted Paper Series