In Mohareb v Fairfax Media Publications Pty Limited [2017] NSWSC 288 McCallum J refers to an asserted imputation in defamation litigation that 'The plaintiff is such an evil man that he is probably related to Satan'.
Fairfax argued that 'the imputation is drawn from material falling in the category of propositions that it is impossible for the reader to take literally'.
The judgment states
It is trite principle that an imputation must specify with clarity and precision an act or condition allegedly attributed to the plaintiff by the defamatory matter complained of. The importance of that task derives from the fact that it is the imputation that defines the issues in the proceedings, in particular informing some of the defences under the Defamation Act. The definition of the issues in turn informs the interlocutory processes of discovery and interrogatories (where allowed) and the scope and course of the trial. Finally, the specificity of the imputation is important at the stage of assessment of damages which, in accordance with the terms of the Defamation Act, is undertaken by the judge.
It should go without saying in that context that, implicitly, the requirement for clarity and precision in the specification of an imputation assumes that the imputation will be something capable (in theory) of being true. That is where I understood Mr Richardson's submission to land. An imputation based on material which it is impossible for the reader to take literally will, in all likelihood, not be capable of being factually true or false.
Mr Rasmussen, who appears for the plaintiff, did not take issue with any of those propositions but, as I understood his submissions, sought to defend the imputation on the basis that it does not fail that test. Specifically, he submitted that many people believe Satan is not a mythical character and that he (Satan, not Mr Rasmussen) is in fact the progenitor of all evil.
I would respectfully understand those propositions to be matters of faith, not fact. But even if that is wrong, the imputation is not capable of being literally true, in that it seeks to attribute the plaintiff with being "probably related to Satan". Whatever belief one has as to the status of Satan, the proposition that a human being could be related to him is one I am comfortably satisfied is incapable of being literally true. It is an attribution of shared genetic material, the impossibility of which does not turn on the existence or otherwise of any god or devil. It is not capable of being literally true and that is its vice. That imputation will be struck out.
