<p>2.3.1.3 Sample defamation jury questions1</p><p>Publication 1. Has the plaintiff established that the defendant [published/sent/broadcast/participated in the publication of]2 the matter complained of?</p><p>False innuendos 2. Has the plaintiff established that the matter complained of, in its natural and ordinary meaning, would have conveyed to the ordinary, reasonable [reader/listener/viewer] any of the following imputations or imputations not substantially different from them and no more serious:</p><p>(a) [Imputation 1]?</p><p>(b) [Imputation 2]?</p><p>(c) [Imputation 3]?</p><p>3. -</p><p>(a) If yes to question 2(a), has the plaintiff established that Imputation 1 is defamatory of [him/her]?</p><p>(b) If yes to question 2(b), has the plaintiff established that Imputation 2 is defamatory of [him/her]?</p><p>(c) If yes to question 2(c), has the plaintiff established that Imputation 3 is defamatory of [him/her]?</p><p>True innuendos 4. Has the plaintiff established the existence of:</p><p>(a) [Extrinsic fact 1]?</p><p>(b) [Extrinsic fact 2]?</p><p>5. If yes to any part of the previous question, has the plaintiff established that the matter complained of would have conveyed to a reasonable person with knowledge of any or all of the extrinsic facts you have found established (see previous question) any of the following imputations or imputations not substantially different from them and no more serious:</p><p>(a) [Imputation 1]?</p><p>1 Note: This charge is a guide only, and may require modification to fit the facts of an individual case 2 Cf Webb v Bloch (1928) 41 CLR 331, 364.</p><p>1 (b) [Imputation 2]?</p><p>(c) [Imputation 3]?</p><p>6. -</p><p>(a) [As in question 2(a) with '2(a)' changed to '5(a)'].</p><p>(b) [As in question 2(b) with '2(b)' changed to '5(b)'].</p><p>(c) [As in question 2(c) with '2(c) changed to '5(c)'].</p><p>Common law justification 7. Has the defendant established that any or all (stating which) of the imputations you have found were conveyed by the matter complained of were true in substance and in fact?</p><p>Statutory justification (s 25) 8. Has the defendant established that any or all (stating which) of the imputations you have found were conveyed by the matter complained of were substantially true?</p><p>Contextual truth (s 26) 9. Has the defendant established that the matter complained of, in its natural and ordinary meaning, would have conveyed to the ordinary, reasonable reader any of the following imputations or imputations not substantially different from them and no more serious:</p><p>(a) [Contextual imputation 1]?</p><p>(b) [Contextual imputation 2]?</p><p>10. -</p><p>(a) If yes to question 9(a), has the defendant established that contextual imputation 1 is defamatory of the plaintiff?</p><p>(b) If yes to question 9(b), has the defendant established that contextual imputation 2 is defamatory of the plaintiff?</p><p>11. -</p><p>(a) If yes to question 10(a), has the defendant established that contextual imputation 1 is substantially true?</p><p>(b) If yes to question 10(b), has the defendant established that contextual imputation 2 is substantially true?</p><p>12. If yes to questions 11(a) and/or 11(b), has the defendant established that the defamatory imputations you have found were conveyed (questions 2 to 6) do no further harm to the</p><p>2 reputation of the plaintiff because of the substantial truth of the defamatory contextual imputation(s) you have found was (were) also conveyed (questions 9 to 11)?</p><p>Common law fair comment 13. Has the defendant established that any or all (stating which) of the imputations you have found were conveyed by the matter complained of were fair comment on a matter of public interest?</p><p>14. If yes to the previous question in respect of any of the plaintiff’s imputations, was the defendant, in publishing the matter complained of, actuated by malice?</p><p>(a) In the context of the defendant’s fair comment defence in this case, you will find that the defendant was actuated by malice if the plaintiff establishes that the defendant did not believe in the truth of [his/her] comment at the time of publication.</p><p>Honest opinion (s 31) 15. [Modify the following questions depending on whether the case relates to the opinion of the defendant, an employee or agent of the defendant, or some other person. These sample questions assume a case where the opinion is the defendant’s opinion.] Has the defendant established that the matter complained of was an expression of opinion of the defendant, rather than a statement of fact?</p><p>16. If yes to the previous question, has the defendant established that the opinion related to a matter of public interest and that the opinion was based on proper material ('proper material' being material which is substantially true or material published on an occasion of absolute or qualified privilege)?</p><p>17. If yes to the two previous questions, has the plaintiff established that the opinion was not honestly held by the defendant at the time the matter complained of was published?</p><p>Absolute privilege 18. [The question of whether a publication was made on an occasion of absolute privilege is a question for the trial judge. If there is a factual question that needs to be resolved before this determination can be made, then insert factual question here.]</p><p>Common law qualified privilege 19. [The question of whether a publication is made on an occasion of qualified privilege at common law is a question for the trial judge. If there is an underlying factual question that needs to be determined, insert question here.]</p><p>3 20. [If the judge has ruled that the publication was made on an occasion of qualified privilege, or if any factual question is resolved by the jury in the plaintiff’s favour on this issue, then the malice question should be in the following terms]. Has the plaintiff established that in publishing the matter complained of, the defendant was actuated by malice?</p><p>(a) In this case, malice will be established by showing that the defendant published the material complained of with a foreign or ulterior motive to the privileged occasion.</p><p>Statutory qualified privilege (s 30) 21. Has the defendant established that the recipient[s] of the material complained of had an interest or apparent interest in having information on a subject and the matter was published to the recipient[s] in the course of giving information on that subject, and that the conduct of the defendant in publishing the matter was reasonable in the circumstances?</p><p>22. [Insert malice question in identical terms to the malice question in respect of common law qualified privilege].</p><p>Statutory defence of innocent dissemination (s 32) 23. Has the defendant established that:</p><p>(a) the defendant published the matter complained of merely in the capacity, or as an employee or agent, of a subordinate distributor [insert direction about subordinate distributors]; and</p><p>(b) the defendant neither knew, nor ought reasonably to have known, that the matter complained of was defamatory; and</p><p>(c) the defendant’s lack of knowledge was not due to any negligence on the part of the defendant?</p><p>Statutory defence of triviality (s 33) 24. Has the defendant established that the circumstances of the publication of the material complained of were such that the plaintiff was unlikely to sustain any harm?3 </p><p>Last updated: 14 April 2014</p><p>3 An issue to be resolved here includes whether harm includes hurt to feelings: see Szanto v Melville [2011] VSC 574, [158] et seq (Kaye J).</p><p>4</p>