Recent articles depicting an increase in hostility towards those who are allegedly breaching the coronavirus restrictions raise an interesting question: whether an allegation that a person has COVID-19 is defamatory? This article considers that question.
When is something defamatory?
A defamation claim requires publication of defamatory material about a particular person. Material may be defamatory if it harms a person’s reputation. But determining whether something is defamatory can be more difficult than it sounds. Courts utilise common law tests which have been developed over centuries but they may not always yield the same result.
Classic formulations applied to determine whether words are defamatory include whether the words would subject the plaintiff to ‘hatred, contempt or ridicule’,1 and whether the words would lead to the plaintiff being ‘shunned or avoided’ by others.2 The oft-quoted speech of Lord Atkin in Sim v Stretch 3 is regarded as a modern touchstone for what is defamatory, the test being whether “the words tend to lower the plaintiff in the estimation of right-thinking members of society generally”.
In Australia, the High Court of Australia appears to have settled on a ‘general test’, similar to Lord Atkin’s test, of “whether the published matter is likely to lead an ordinary reasonable person to think the less of a plaintiff”.4
However, the law of defamation has developed and accepted special categories of allegations that are taken to be defamatory. These developments saw the establishment of slander actionable per se5 if a person imputed of another: (i) any contagious disease which would exclude a person from society; (ii) unfitness for a profession, trade or calling; (iii) misconduct in an office of profit which would lead to dismissal; (iv) un-chastity; or (v) commission of a crime.6
Where did this special category of ‘contagious diseases’ come from?
The 1769 UK case of Villers v Monsley7 demonstrates an early decision by the Court of King’s Bench to extend libel to ‘contagious diseases’, not limited to the accepted libellous charges of leprosy or plague. The plaintiff was said by the defendant to have ‘the itch’ – then an unknown contagious disease but likely fleas or lice – which was published by the defendant in a poem. The poem read:
‘Old Villers, so strong of brimstone you smell, As if not long you have got out of hell; But this damnable smell I can no longer bear, Therefore I desire you would come no more here; You stinking, old nasty, old itchy old toad, If you come anymore, you shall pay for your board, You’ll therefore take this as a warning from me, And nevermore enter the doors, while they belong to J.P.’
In the 18th century, the imputations seemed to have been limited to leprosy, syphilis and the plague. In the case of Villers v Monsley, the references in the poem to smelling of brimstone and being ‘itchy’ were found to mean that the plaintiff had ‘the itch’ and the plaintiff was successful in his claim in libel. He was awarded damages of sixpence.
So, is it defamatory to say that a person has COVID-19?
In a word, ‘yes’.
Unless and until the Courts tell us that there is no special ‘contagious diseases’ category of defamatory meanings, Courts are likely to apply this established principle and find that saying that someone has COVID-19 is defamatory simply because it is a contagious disease.
Otherwise, arguably the result differs depending on which ‘test’ is applied. A jury may not find that the hypothetical ordinary reasonable person would think less of a person if it were said, without more, that the person had COVID-19. The person would not have been held up to hatred or contempt, but perhaps held up to ridicule. On the other hand, saying that a person had COVID-19 would certainly lead to them being shunned and avoided.
Even if the test laid down in Chesterton does not demand a positive answer to the posited question, it is but one tool to ascertain whether an imputation is defamatory of a plaintiff. The High Court expressly acknowledged it was a ‘general test’. The Courts have other tools at their disposal and would likely use these to conclude that an allegation that a person has COVID-19 is defamatory. The ‘shunned and avoided’ test would provide a sound basis for this result.
Take Victoria’s present unfortunate circumstances and ‘second wave’ of infections, for instance. Entire States are shunning and avoiding Victorians, who must now bear the brunt of humorous (and not so humorous) ridicule, but we do not think less of those Victorians who have simply contracted COVID-19.
If saying a person has COVID-19 is defamatory, should this still be the law?
It is likely that a concentration of stigmatisation developed over hundreds of years has cemented the view that people with contagious diseases should be avoided or shunned. Social status has proved a powerful motivator, driving people’s opinions and actions. The ideals of our society have changed. How we view others who are injured, sick or disabled, thankfully, has improved.
Unlike the 1700s ‘itch’, it may be argued that there is likely no such damage to the reputation of a person who contracts COVID-19. Unlike HIV/AIDS, COVID-19 does not carry any misguided association of homosexuality (itself once considered to be a defamatory allegation), intra-venous drug use or prostitution. COVID-19 is a virus and appears to infect people indiscriminately through relatively close contact. The disease is known to be highly contagious and indiscriminate. The World’s politicians, celebrities and sporting stars are not immune.
Similar arguments were rejected in Villers v Monsley as the mere contagious disease allegation rendered the plaintiff ridiculous and liable to being cut off from society. Bathurst J put it neatly:
“I have no doubt at present but that the writing and publishing any thing which renders a man ridiculous is actionable; and whether the itch be occasioned by a man’s fault or misfortune, it is a cruel charge, and renders him both ridiculous and miserable, by being kept out of all company”
The harm done to a person’s reputation by a charge of having COVID-19 would be both immediate and severe, even if only temporary. Liability for a wrongful charge of having COVID-19 would be a just result.
What does this mean for modern society?
Coronavirus and COVID-19 have captured the world’s and the media’s attention. The modern age of social media sees influencers, ‘keyboard warriors’ and ‘trolls’ fight for relevance, attention and ‘likes’. Personal attacks are commonplace. It is likely that more people will make allegations against others of having COVID-19. They might face a defamation suit if they do.
Sinead Spencer co-authored this article with Alex Tharby.
- Historically, slander was actionable only upon proof of special damages (generally, economic loss) whereas libel was actionable per se and did not require proof of special damages. This distinction has since been abolished in Australia.
- Sir Frederick Pollock, The Law of Torts: A Treatise on the Principles of Obligations arising from Civil Wrongs in the Common Law: to which is added the Draft of a Code of Civil Wrongs prepared for the Government of India, Fourth Edition (1895, 12th ed. London: Stevens and Sons) at 238; Clerk and Lindsall on Torts, (4th ed.), 555. See also Mickelberg v 6PR Southern Cross Radio Pty Ltd (2001) 24 WAR 187, 188-189 .