## Facts

- A commercial television broadcaster aired a program about abortion and public controversy surrounding it.
- The program portrayed Dr. Hepburn, a practicing gynecologist at a family-planning clinic, as a doctor who performed abortions and used the label “abortionist” (or equivalent).
- Dr. Hepburn sued for defamation, alleging the broadcast conveyed defamatory imputations about him personally and professionally, including that the label “abortionist” lowered him in the estimation of ordinary viewers.
- The broadcaster relied on the statutory defense of “contextual truth” under s 16 of the Defamation Act 1974 (NSW), asserting that other imputations conveyed by the same broadcast were substantially true and neutralized any additional harm from the imputations sued upon.
- At first instance, the trial judge effectively withdrew the meaning/defamatory quality question from the jury by ruling the term “abortionist” was not capable of being defamatory in the circumstances, resulting in dismissal (or striking out) of the claim as pleaded.
- Dr. Hepburn appealed; the broadcaster cross-appealed on issues concerning the operation of s 16 and related matters.

## Issues

1. Whether describing a medical practitioner as an “abortionist,” in the context of a television broadcast about abortion, was capable in law of conveying a defamatory imputation.
2. Whether the assessment of the publication’s natural and ordinary meaning and defamatory effect should have been left to the jury rather than determined conclusively by the trial judge.
3. How the statutory “contextual truth” defense under s 16 operates where a single publication conveys multiple imputations and the defendant relies on the substantial truth of other imputations to defeat liability for the imputations sued upon.

## Decision

- The court held the term “abortionist,” used of a doctor in the circumstances of the broadcast, was capable of conveying a defamatory imputation.
- The trial judge erred by withdrawing the issue from the jury; where words are capable of defamatory meaning, it is for the jury to decide whether ordinary viewers would understand them as defamatory in context.
- The court provided authoritative guidance on s 16 contextual truth: the defendant must plead and prove substantial truth of contextual imputations and prove that, because of that truth, the plaintiff’s reputation was not further harmed by the imputations complained of.
- Dr. Hepburn’s appeal was allowed to the extent necessary to restore the claim for determination by the proper fact-finder; the s 16 issues were treated as matters for application on further proceedings consistent with the court’s construction of the statute.

## Legal Principles

- The judge decides only whether the complained-of words are capable of a defamatory meaning; if a reasonable jury could find them defamatory, the issue must be left to the jury.
- A morally charged label can be defamatory depending on context; lawful conduct may still be framed in a way that conveys moral opprobrium and lowers reputation.
- Under s 16 contextual truth, a publication may convey multiple distinct imputations, including imputations not sued upon that may be treated as “contextual” to those complained of.
- The contextual truth defense requires: (1) identification of contextual imputations from the same publication; (2) proof that those contextual imputations are substantially true; and (3) proof that, because of their substantial truth, the plaintiff’s reputation was not further harmed by the imputations sued upon.
- Contextual truth is directed to incremental reputational harm: substantially true contextual imputations may “swamp” or neutralize additional damage from other imputations, but only if the statutory elements are satisfied.

## Conclusion

The court reinstated the defamation claim by holding that calling a doctor an “abortionist” in a contentious public debate was capable of being defamatory and should be assessed by a jury, while also clarifying that the statutory contextual truth defense requires both substantial truth of contextual imputations and proof that they caused no further reputational harm from the imputations sued upon.


Hepburn v. TCN Channel Nine Pty. Ltd., [1983] 2 N.S.W.L.R. 682 (N.S.W. Ct. App. 1983)