Defamation & Offensive Language

In an entertaining scene from the Red Dwarf, Arnold Rimmer, states to Holly “You’re about as much use as a condom machine in the Vatican”.

In a rather long-winded way, Arnold essentially called Holly an idiot.

It is common, in this day and age, due to the advent of social media and instant communication, for people to express themselves when in a state of anger in colourful ways, which may carry inferences that a person is an idiot, amongst other potential defamatory meanings. This was highlighted in Gaynor v Burns (No 2) [2015] NSWDC 283, where Gibson DCJ stated –

“Claims of “vulgar abuse” were so rare that Mundey, the leading case on this issue, remained unreported for some years after it was handed down. Its increase in popularity in recent times owes much to the colour and intemperate language that is the hallmark of Internet blogs and social media, as more than one judge has observed.”

Conversely, a person may be just as likely to state that another person is stupid, an idiot or a moron, amongst other insults, and they may be accompanied by the use of expletives.

It is therefore a common question which we are often required to advise upon in defamation matters, and that is; whether the use of expletives, or other abusive or vulgar language constitutes defamation. The general principle at law is that the mere use of vulgar or abusive language does not give rise to, or sufficiently constitute, a claim in defamation. It is better understood like this: a statement may hurt a person’s pride, and simultaneously not be defamatory, because it has not hurt their reputation in the eyes of another.

There is no distinction between vulgar and abusive language, and whether something is defamatory.¹ Accordingly, whether a statement which is abusive or vulgar in nature is defamatory, is to be determined in accordance with the usual principles of defamation, and that is whether the statement is capable of harming the reputation of the person in the eyes of right-thinking members of society.

the New South Wales Supreme Court case of Polias v Ryall [2013] NSWSC 1267 (Polias) demonstrates the dichotomy between abusive statements and statements which are capable of being defamatory.

In Polias, the plaintiff, Mr Nicholas Polias, pleaded the following statement –

“Lol nick is f**king stupid. His mother is f**king stupid. What a dumb b*tch. How are people like this allowed to breed? Disgraceful, good riddance to bad shit. Nick you should be ashamed of yourself, for the human being you are.” (reproduced as per original).

Mr Polias, likewise, pleaded that the above statement carried and conveyed the following meaning –

“Mr Polias should be ashamed of himself for the things he has done in his life.”

The Court ultimately found that that statement, although demeaning, insulting and offensive, was so devoid of any meaning capable of harming his reputation, that it should be struck out.

Perhaps, one of the more interesting cases highlighting that abusive statements may not constitute defamation, is the case of Kermani v Seervai [2017] NSWDC 449. In that case, the plaintiffs, as the statement pertained to them, pleaded that the following statement was defamatory of them –

“To Nozer Bana (the Thor), Farida Irani (queen bee), MC Marfatia (Terminator) Ruzbeh desai (the A licker) and few others who tried to divide the community got their asses kicked at the AGM…”

The plaintiffs complained that the above statement carried and conveyed statements that they were, as it related to them, a ‘queen bee’, a ‘terminator’ and an ‘arse licker’.

The Court ultimately ruled that although the internet had given rise to a proliferation in insulting and offensive language, including the use of expletives, the statement still had to be viewed in the context in which it was used, to determine whether or not the statement, that is, the whole of the matter, is capable of giving rise to a defamatory meaning. Accordingly, the court ruled that the statement which gave rise to those imputations, and the pleaded meanings, were not conveyed. As such, the court struck out those imputations.

The analysis and determination as to whether a particular statement is defamatory, or merely abusive and insulting, requires special skill and experience by a qualified legal practitioner in the area of defamation. Accordingly, if you have been the subject of an insulting and offensive, but potentially defamatory statement, which you wish to understand your rights in relation to, Melbourne Defamation Lawyers have the in depth knowledge and experience to assist you and you can contact us at lee@cpl.allenlaw.au or alternatively on 0429 070 261.

This article is general in nature and is not to be relied upon as legal advice on any subject matter. The article should not be used as a substitute for legal advice from a qualified legal practitioner, as the law could change or may not be applicable your particular matter.

1 Bennett v Cohen (1982) 2 NSWLR 369 at [327]