Publication of defamatory comments on websites, social media and business networking platforms such as Facebook, Twitter, Instagram and LinkedIn are becoming increasingly common and are causing devastating harm to both personal and business reputation and business losses. Some of the defamatory material published is of such an extreme nature that it has been described as being “generally without any basis and driven not by mere malice but some kind of internet “road rage”[i].
Recent awards of damages by courts for on-line defamation serves as a warning to all using the internet that care must be taken to ensure that there is a factual basis for what is published. Wilson v Bauer Media (2017)[ii] was one of the highest damages awards for defamation in Australia, involving the publication of one print article in the Women’s Day and seven on-line articles in 2015. The trial Judge assessed Rebel Wilson’s general damages, including aggravated damages in the sum of $650,000 and special damages in the sum of $3,917,427. On appeal by Bauer Media, the Court of Appeal[iii] reduced the award of damages for non-economic loss including aggravated damages from $650,000 to $600,000 and ruled that Wilson had not made out her claim for special damages.
Individuals who seek to hide their identity by making anonymous posts and using fake names when posting defamatory material on-line are at risk of being identified by the use of court ordered pre-trial discovery from the social media and telecommunications companies and the use of IT forensic experts.
This update provides a review of the damages awarded in recent defamation cases and some of the factors taken into account by courts in awarding damages.
Compensatory Damages
A defamed party can claim compensatory damages for non-economic loss (general damages) and also any economic loss (special damages) sustained by reason of the publication of the defamatory material. In the case of non-economic loss, there is a cap on the maximum amount of damages that can be awarded for individual defamation proceedings, which currently is $407,500[iv]. However, this cap does not apply if the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate warrant an award of aggravated damages[v]. There is no limitation on the amount of economic loss that can be awarded by the courts.
Non-economic loss (general damages)
The purpose of non-economic loss compensatory damages is to provide a vindication of the defamed person’s reputation, reparation for the harm done to the reputation and consolation for the distress, upset and injury to the feelings of the defamed person occasioned by the defamatory publication[vi]. The courts, in awarding damages, are required to ensure that “there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount awarded”[vii].
Awards of non-economic loss compensatory damages in defamation cases vary considerably having regard to the evidence in each case. The types of factors considered by the court in awarding such damages include:
- The reputation or social standing of the party prior to the publication of the defamatory material.
- The gravity or seriousness of the imputations. Some of the material published on social media has been so dreadful that it was not repeated in the court Judgement[viii].
- The extent of publication of the defamatory material and the grapevine effect. In the case of:
- websites, the number of on-line subscribers and visitors to the site;
- Facebook and other social media, the number of social media friends and the extent of distribution beyond those friends;
- Search engines such as Google, Yahoo and Bing, the number of searches undertaken using a particular keyword search that results in the publication of the defamatory material in the search results.
- The period that the material remains on the website or social media site.
- The extent of distress, upset and injury suffered by reason of the publication of the defamatory material.
Further, where there is an issue of causation of the harm suffered by the defamatory publication, it is not necessary that the defamatory statements be the sole cause of the harm suffered. All that is necessary is that the tortious conduct be a cause of the plaintiff’s injury[ix]. Often in defamation cases it is difficult for the defamed party to prove economic loss from reputational damages and accordingly a separate claim for economic loss is not made but any alleged general loss of business or custom is included as a part of the general damages claim[x]. In Bauer Media v Wilson[xi], the Court of Appeal rejected Wilson’s general damages claim for loss of business. The Court concluded that Wilson was unable to prove to the standard of balance of probabilities that she had experienced a decline in business caused by the publication of the articles.
Aggravated Damages
A defamed party can claim aggravated damages[xii] where there has been an improper aggravation to injury done from the time of publication of the defamatory material. The courts will award aggravated damages, where it can be established that there was a “lack of bona fides” in the defendant’s conduct or that the defendant’s conduct was in some relevant matter “improper or unjustified”[xiii]. There is no limit on the amount of aggravated damages that can be awarded by the Court in defamation proceedings. Aggravated damages form part of compensatory damages, where the conduct of the defendant exacerbates or increases the subjective hurt of the defamed person. Where a judge has found that an award of aggravated damages is warranted the court can make awards of both pure compensatory damages and aggravated compensatory damages that exceed the statutory cap as a global sum. The court is not required to identify aggravated damages as a separate sum when awarding compensatory damages[xiv].
Damages can be increased[xv] or aggravated damages awarded, where there has been:
- Failure by the publisher to properly investigate the matter before publishing the material[xvi].
- An unjustified failure to apologise or retract the defamatory publication;
- An unjustified failure to take down or remove defamatory material from websites and social media and business on-line sites;
- Unjustified persistence in making untrue allegations;
- Conducting a defence in a manner which is not justified, improper or lacking bona fides.
Economic Loss (Special Damages)
In a defamation case, a claim for economic compensatory damages can include loss of earnings, profits or income, loss of business, loss of employment, loss of contracts, loss of opportunity to earn income or other losses of a monetary nature that the defamed person has suffered by reason of the defamatory publication. For a defamed person to succeed in a special damages claim, they must:
- Establish that the alleged economic loss was caused by the defamatory publication and is not too remote[xvii];
- Have evidence before the court that enables the court to quantify the alleged damages.[xviii] This evidence is generally given by the defamed person and independent experts retained to verify or assess the losses claimed. Special damages will not be awarded by a court where the evidence requires speculation or guesswork by the court and does not provide a rational foundation for a proper estimate of damages to be made by the court[xix].
The courts in assessing damages for loss of an opportunity or chance, have applied the following analytical framework:
Value of lost opportunity= PxV, where V=Mx (1-C)
P= the probability of realising an opportunity;
V=the values of the opportunity;
M= the maximum value of the opportunity; and
C=the “value” of any contingencies.[xx]
Wilson v Bauer Media
In Wilson v Bauer Media, Rebel Wilson’s claims were for lost earnings from her contracts with the producers of three movies and loss of opportunity to earn income[xxi]. During the final submissions at trial, Rebel Wilson abandoned her lost earnings claim[xxii].
Rebel Wilson’s case in relation to the issue of causation was based on circumstantial evidence and not direct evidence that Bauer Media’s publication of the articles was a cause of her loss. Wilson claimed that she would have been cast in a number of lead or co-lead roles in feature films during the period 2015 and 2016 following the release of Pitch Perfect 2, but for the damage to her reputation caused by the publication of the articles in Australia and resulting grapevine effect that spread to the United States with the articles being widely discussed in the entertainment industry.[xxiii] The trial Judge concluded that the economic loss claimed was caused by the publication of the articles based on the circumstantial evidence[xxiv] and was not too remote from the article publications[xxv].
In support of Rebel Wilson’s special damages claim, Wilson’s talent agent gave evidence as to past and existing roles, expected offers for movie roles after the launch of Pitch Perfect 2 and fees for such roles[xxvi]. Wilson also called expert evidence from a talent manager from a US based talent agency, who was also a film producer, who in summary expressed opinions that:
- “Ms Wilson was likely to have received, in the year or two following the release of Pitch Perfect 2 (being 2015 and 2016), several offers from studios as a lead or co-lead actor.
- Ms Wilson would have received compensation on each film in the range of fixed compensation between USD$5 and USD$6million, plus box office bonuses.
- Because of the change that he observed in the demand for Ms Wilson’s services, and because he is not aware of any reason that Ms Wilson would not have received at least 2 or 3 offers per year after Pitch Perfect 2 other than the coincidences of timing, it is his opinion that the defendant’s publications resulted in the decrease in Ms Wilson’s acting work.”[xxvii]
No expert evidence was called by Bauer Media.
The trial Judge rejected Bauer Media’s contention that Rebel Wilson’s claim for lost opportunity was speculative guesswork because there was not a rational foundation for a proper estimate of the quantum of damages and therefore no award should be made. The trial Judge quantified Rebel Wilson’s lost opportunity as “at least two lead or co-lead roles in feature films for which she would have earned a fee of at least US$5million but more than US$6million for each film” and adopting a medium assessment, the court valued the lost opportunity at 3 times US$5million, that is US$15million gross. The court then discounted US$15million by 80 percent and assessed Rebel Wilson’s special damages at US$3million (equivalent to AUS $3,917,472).[xxviii]
Bauer Media v Wilson [Appeal]
Bauer Media on appeal challenged the special damages award, the trial Judge’s findings that Wilson had established on the balance of probabilities the loss of opportunity to earn US$15million from being cast in lead or co-lead roles in three feature films during the period mid-2015 to end of 2016 and that the cause of such loss was the publication of the defamatory articles[xxix].
Wilson’s case was that it had to be inferred that the grapevine poison from on-line publication of the defamatory material has spread to Hollywood and had caused movie studios to shun her[xxx].
The Court of Appeal, having reviewed the evidence adduced at trial, concluded that Wilson had not made out her special damages claim. Wilson had not proved on the balance of probabilities that the opportunity that she contended had existed had been lost. There was insufficient evidence to support the inference that the publication of the articles in Australia, had a grapevine effect in the United States and was a cause of Wilson’s claimed loss of opportunity in relation to Hollywood films[xxxi].
There was no evidence the articles ever came to the notice of film or television decision-makers. Ms Jackson, Wilson’s agent, had no personal knowledge of the articles. Mr Principato, US talent agent and producer who gave expert evidence on Wilson’s behalf, also did not know of the articles at any relevant time and gave no evidence that any of the imputations conveyed in the articles had any currency in Hollywood[xxxii].
Further, Ms Jackson’s evidence showed that following the publication of the articles two Hollywood studios did not shun Wilson but continued to engage with Wilson on three development projects in 2016[xxxiii]. There was also no evidence that the publications affected her relationship with Universal Studios, the producers of Pitch Perfect 2. Seven weeks after the publications of the articles, Wilson’s ‘incredible contribution’ to the success of Pitch Perfect 2 was acclaimed in a letter to Wilson from executives of Universal Studios who ‘greatly look[ed] forward to continuing our collaboration’[xxxiv]. There was no evidence that the international success of Pitch Perfect 2, was affected in any country by the publication of the articles[xxxv]. Wilson went on to star in Pitch Perfect 3. Wilson also continued to be engaged in productions in London (Guys & Dolls) and Hollywood (“The Little Mermaid”) and was retained to promote British Telecom and booking.com[xxxvi].
Recent Defamation Cases – Damages Awards
Cases – 2015 – October 2019
Bowden v KSMC Holdings Pty Ltd (t/as Hubba Bubba Childcare on Haig Chapman) [2019] NSWDC 98
Date of Decision: 4 April 2019
Court: District Court of New South Wales
Publication Media:
The Plaintiff commenced proceedings against the first defendant, his former employer, KSMC Holdings Pty Ltd and the second defendant, Ms Karen Chapman, the director and guiding mind of that company. The Plaintiff’s former employer circulated an email containing comments about the Plaintiff to 35 people approximately 11 days after the Plaintiff ceased working for the employer.
Categorisation of defamatory material:
“An ordinary reasonable reader would fairly draw from the text complained of by the plaintiff in the emails, a general conclusion, impression and understanding that was adverse to, and injurious to, the plaintiff’s otherwise good reputation: Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37, at pp 575-576, at [134].”[xxxvii]
Damages Awarded:
Verdict and judgement for the Plaintiff for compensatory, aggravated and special damages, including pre-judgment interest, in the total amount of $237,970.22 plus the Defendants ordered to pay the Plaintiff’s costs of the proceedings – broken down as follows:
(a) Compensatory damages $200,000.00
(b) Aggravated damages $25,000.00
(b) Special damages $915.30
(c) Interest $12,054.92
Total $237,970.22
___________________________________________________________________________
Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185
Date of Decision: 22 February 2019
Court: Federal Court of Australia
Publication Media:
The Plaintiff sued the Defendant in relation to an article published on The Sydney Morning Herald website on 16 October 2015.
Categorisation of defamatory material:
The sensational and hyperbolic language and the general sneering and deprecating tone of the article as a whole; and the lack of any demonstrable care and caution in reporting serious allegations against the Plaintiff…[xxxviii]
Damages Awarded:
$280,000 compensatory damages inclusive of the sum of $55,000 in lieu of interest and the Defendant to pay the Plaintiff’s costs.
Gayle v Fairfax Media Publications Pty Ltd (No 2) [2018] NSWSC 1838
Date of Decision: 30 November 2018
Court: Supreme Court of New South Wales
Publication Media:
In relation to 5 separate Articles spread across both print and online publications, owned by the Defendant including The Age, The Sydney Morning Herald and The Canberra Times that were all published in early 2016.
Categorisation of defamatory material:
The Plaintiff claimed that the various articles published by the Defendant’s publications caused a considerable amount of distress and hurt that the Plaintiff suffered harm to both their personal and professional reputation. The Court found that “The burden of the imputations is nonetheless serious“[xxxix] and that “principal harm was done to Mr Gayle’s reputation by the present allegation, having regard to its significantly greater seriousness”.[xl]
Damages Awarded:
The sum of $300,000 plus interest $26,112 for a total of $326,112 and the Defendant to pay the Plaintiff’s costs of the proceedings on the ordinary basis up to and including 6 July 2017 and on an indemnity basis from 7 July 2017.
Scott v Baring [2018] WASC 361
Date of Decision: 22 November 2018.
Court: Supreme Court of Western Australia
Publication Media:
On or about 24 February 2018, the First Defendant published a Facebook post about the Plaintiff on the Facebook page belonging to the Business owned and operated by the First Defendant. The defamatory post was “Liked”and shared by numerous Facebook users which constituted a republication of the defamatory material.
Categorisation of defamatory material:
The imputations made in the post about the Plaintiff’s personal integrity, professional reputation were further aggravated by the conduct of the Defendants in that they did nothing to mitigate the harm, offer an apology or remove the defamatory post. The Court accepted that “..the publication had a substantial deleterious effect on the Plaintiff’s mental state”.[xli]
Damages Awarded:
The Plaintiff awarded both general and aggravated damages comprising of:
- An award of $120,000 for ordinary compensatory damages;
- An award of $20,000 for aggravated damages; and
- An award of interest at 6% per annum plus the costs of the assessment of damages
Wagner & Harbour Radio Pty Ltd & Ors [2018] QSC 201
Date of Decision: 12 September 2018
Court: Supreme Court of Queensland Publication Media:
The four Plaintiffs sued the four Defendants in respect of 32 separate matters, the majority of which were radio broadcasts and also streamed online – and the Plaintiffs’ claim for aggravated damages rested partly on the Defendants’ publication of 53 additional radio broadcasts, all of which predated the broadcasts complained of.
Categorization of defamatory material
“The 80 imputations conveyed are, in my view, extremely serious and of the gravest kind”[xlii]
Damages Awarded:
1. The first and second Defendants ordered to pay to each of the four Plaintiffs damages for defamation in the sum of $750,000 plus interest in the amount of $78,102.74
2. It was further ordered that the second and third Defendants pay each of the four Plaintiffs damages for defamation in the sum of $100,000 plus interest in the amount of $10,643.84.
3. The Plaintiffs’ claim against the fourth defendant was dismissed.
Bauer Media Pty Ltd v Wilson [No 2] [2018] VSCA 154 (overturning the decision of the Supreme Court of Victoria in Wilson v Bauer Media Pty Ltd [2017] VSC 521 dated 13 September 2017)
Date of Decision: 14 June 2018
Court: Supreme Court of Victoria Court of Appeal
Publication Media:
One print article in the print edition of Woman’s Day (published 18 May 2015[xliii]) and seven online articles on the Woman’s Day and Woman’s Weekly websites (which remained online from 18 May 2015 to 14 May 2016).
Categorisation of defamatory material:
The imputations conveyed by the articles were “very serious”[xliv].
Damages Award
Initial award of damages in the Supreme Court of Victoria was $4,567,472, comprising:
- $650,000 in general damages (including aggravated damages) for the 8 articles. The court did not provide a breakdown of the assessment of damages for each article nor the amount awarded for aggravated damages; and
- AUD $3,917,472 for special damages for loss of opportunity to earn income during 2015 and 2016;
plus simple interest on the total damages sum of 3% per annum commencing from 19 May 2015.
On appeal, the Court of Appeal reduced the award of damages for non-economic loss including aggravated damages to $600,000 and ruled that Wilson had not made out her claim for special damages
Bottrill v Bailey [2018] ACAT 45
Date of Decision: 20 April 2018
Court: ACT Civil & Administrative Tribunal
Publication Media:
Facebook post containing link to a YouTube video which was defamatory of the applicant[xlv]
Categorisation of defamatory material:
While the respondent was not responsible for publishing the video which was defamatory of the applicant, the Tribunal found that she was liable for publication of the defamatory material because of her failure to comply with a notice requesting the removal of the post from her Facebook page.[xlvi]
The Tribunal stated “it is difficult to imagine more egregious defamatory imputations”.[xlvii]
Damages Award
$18,880 including aggravated damages, interest and costs[xlviii]
Rayney v Western Australia (No 9) [2017] WASC 367
Date of Decision: 15 December 2017
Court: Supreme Court of Western Australia
Publication Media:
Four press conferences by the Western Australia police, each of which received significant media coverage both in print and online[xlix]
Categorisation of defamatory material:
The imputation was “obviously at the high end of the range of seriousness of defamatory imputations [and] … undoubtedly had a devastating effect on the plaintiff’s life”[l]
Damages Award
$600,000 for non-economic loss including aggravated damages
The Court ordered the parties to confer on the amount of damages for economic loss and in the absence of any agreement, this amount is to be determined on further submissions by the parties
Stokes v Ragless [2017] SASC 159
Date of Decision: 10 November 2017
Court: Supreme Court of South Australia
Publication Media:
132 internet publications between 30 October 2012 and 24 June 2014, comprising 116 separate statements on a website created by the defendant, 15 emails and via a Facebook page[li]
Categorisation of defamatory material:
The imputations conveyed were “clearly capable of exposing a person to hatred, contempt or ridicule, or causing a person to be shunned, or adversely affecting a person’s reputation when measured by how the ordinary, reasonable reader would understand the publications”[lii]
Damages Award
General damages – $70,000[liii]
Aggravated damages – $20,000[liv]
Chel v Fairfax Media Publications (No 7) [2017] NSWSC 996
Date of Decision: 28 July 2017
Court: Supreme Court of New South Wales
Publication Media:
Article in The Sun Herald print and online newspaper.[lv]
Categorisation of defamatory material:
The imputations conveyed in the article “had the potential to and did occasion significant damage to Ms Chel’s reputation” and were of a serious nature concerning her character[lvi].
Damages Award
General damages -$100,000[lvii]
No aggravated damages were awarded.[lviii]
Sheales v The Age & Ors [2017] VSC 380
Date of Decision: 29 June 2017
Court: Supreme Court of Victoria
Publication Media:
Newspaper article published online on 2 August 2015 (2,254 page views) and in print in The Age on 3 August 2015 (102,552 print copies). The online material remained online until shortly after the jury returned its verdict on 24 March 2017.
Categorisation of defamatory material:
The imputation found by the jury was “serious in nature, not mild”.[lix]
Damages Award
Damages: $175,000 including aggravated damages
Al Muderis v Duncan (No 3) [2017] NSWSC 726
Date of Decision: 7 June 2017
Court: Supreme Court of New South Wales
Publication Media:
There were five defamatory publications about the plaintiff, which consisted of two websites, a public Facebook page, a YouTube video and publications on the “Daily Motion” and “Pinterest” websites (published between 19 February 2015 and 14 September 2016[lx]).[lxi]
Categorisation of defamatory material:
The imputations conveyed by the publications were “extraordinarily damaging”[lxii].
Damages Award
Damages: $320,000, including aggravated damages, to be paid by both defendants jointly and severally for the first publication which was published by both the first and second defendant.[lxiii]
In addition, the Second Defendant was ordered to pay a further $160,000 in damages for the remaining four defamatory publications which were published by the second defendant alone.[lxiv]
The court also granted injunctive relief to restrain the defendants continuing to engage in the conduct complained of.[lxv]
Reid v Dukic [2016] ACTSC 344
Date of Decision: 25 November 2016
Court: Supreme Court of the Australian Capital Territory
Publication Media:
Nine Facebook posts on the defendant’s Facebook page during the period 13 January 2015 to 8 December 2015.
The defendant’s Facebook profile was public as opposed to private and therefore the Defendant’s posts were accessible to anyone and not limited to the Defendant’s Facebook friends.[lxvi] The defendant had about 400 Facebook friends.[lxvii]
All posts removed on 12 February 2016.
The posts remained published online for differing time periods ranging from 66 days to 395 days.[lxviii]
The defendant took no part in the proceedings and default judgment was entered in favour of the plaintiff.
Categorisation of defamatory material:
The material contained in the Facebook posts was baseless and was directed towards the plaintiff in her professional capacity as the Chief Executive Officer of a football organisation. The court found that the posts were a sustained repetitive attack on the plaintiff’s reputation and character that demonstrated no sign of abating in circumstances where the Plaintiff had no opportunity to comment prior to publication.[lxix]
Damages Award
Damages – $160,000
Aggravated damages – $20,000
Plus interest on the aggregated sum at 3% for a period of 6 months, amounting to $2,700.
Injunctive relief granted to restrain the defendant from publishing the matters complained of or any matter of similar effect. [lxx]
Weatherup v Nationwide News Pty Ltd [2016] QSC 266
Date of Decision: 16 November 2016
Court: Supreme Court of Queensland
Publication Media:
Article published in the Australian Newspaper on 16 June 2014.
108,288 print copies were circulated nationally on 16 June 2014.
“There were no circulation figures for online or digital subscriptions.”[lxxi]
Categorisation of defamatory material:
The article was “of significant defamation of the plaintiff’s character”.[lxxii]
Damages Award
Compensatory general damages – $75,000.
Aggravated damages – $25,000.
The general damages including aggravated damages assessed at $100,000. The court attributed one quarter of the award of damages to aggravated damages.[lxxiii]
Douglas v McLernon [No 4] [2016] WASC 320
Date of Decision: 7 October 2016
Court: Supreme Court of Western Australia
Publication Media:
Various articles about the plaintiffs published on three websites.[lxxiv] (There were three plaintiffs in this matter, Mr Douglas, Mr Billis and Mr Matich).
Categorisation of defamatory material:
The imputations were described as “seriously pejorative and damaging”[lxxv] to the plaintiffs’ reputations.
Damages Award
Damages (including aggravated damages) – $250,000 each to Mr Douglas and Mr Billis.[lxxvi]
Damages (including aggravated damages) – $200,000 to Mr Matich.[lxxvii]
The court also granted a permanent injunction restraining the defendant from publishing matters conveying specified defamatory imputations or any imputations to the same or similar purport and effect[lxxviii] about each of the plaintiffs.
Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091
Date of Decision: 9 August 2016
Court: Supreme Court of New South Wales
Publication Media:
Four separate online publications in the Sydney Morning Herald online.
One of the articles contained hyperlinks to the other three articles.
The plaintiff was able to sue on the four articles together as one separate publication in addition to suing on the other three articles separately.
Categorisation of defamatory material:
The imputations were serious, striking at the heart of Mr Carolan’s reputation as an outstanding personal trainer.”[lxxix]
Damages Award
General damages – $300,000
Piscioneri v Brisciani [2015] ACTSC 106
Date of Decision: 6 May 2015
Court: Supreme Court of the Australian Capital Territory
Publication Media:
Posts on an online forum about the plaintiff on a website called www.zgeek.com.au. There were two separate series of posts about the plaintiff. One series was in 2005 and the other was in 2010.
The defendant was the owner and director of the website.
The 2005 posts remained accessible online for a number of years.
Categorisation of defamatory material:
The posts were “certainly capable of conveying very serious defamatory imputations against the plaintiff”[lxxx] .
The court considered that the gravity of this defamation was significantly tempered by the fact that the material was only viewed by a small number of people.[lxxxi]
Damages Award
Damages – $82,000 including aggravated damages of $10,000 and interest.
Both parties were self- represented.
Rothe v Scott (No.4) [2016] NSWDC 160
Date of Decision: 5 August 2016
Court: District Court of New South Wales
Publication Media:
Facebook posts. Limited publication with evidence being that the defendant had about 300 Facebook friends at date of trial, and that the post that had been put on Facebook had been shared 322 times[lxxxii].
Categorisation of defamatory material:
The defamatory posts published were of an “extreme kind” and made without factual basis[lxxxiii].
Damages Award
Damages- $100,000
Aggravated damages- $50,000
Dods v McDonald (No.2) [2016] VSC 201
Date of Decision: 6 May 2016
Court: Supreme Court of Victoria
Publication Media:
Website.
Defamatory material published on website for about 4 months.
Categorisation of defamatory material:
The defamatory content of publication was very grave, of the plaintiff who was a serving police officer[lxxxiv].
Damages Award
$150,000 including aggravated damages.
Hardie v The Herald Weekly Times Pty Ltd [2016] VSCA 103
Date of Decision: 13 May 2016
Court: Supreme Court of Victoria Court of Appeal
Publication Media:
Herald Sun website-Articles remained on line for more than two years.
Categorisation of defamatory material:
The imputations published were “seriously defamatory” of the applicant[lxxxv].
Damages Award
Damages -$150,000 for the on-line publication awarded against The Herald and Weekly Times Pty Ltd.
Damages -$100,000 for radio broadcast of defamatory material by Andrew Rule.
No aggravated damages awarded.
Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652
Date of Decision: 30 June 2015
Court: Federal Court of Australia
Publication Media:
Publication on Twitter by the Age.
Also published on SMH poster.
Categorisation of defamatory material:
Twitter matter conveyed the imputation alleged.[lxxxvi]
Although the court accepted that the defamatory allegations of corruption by a politician is a serious defamation, the court considered that the defamatory imputations in the case were not the most serious form of defamation of the kind alleged, such as allegations of bribery[lxxxvii].
Damages Award
Damages – $80,000 for publication on Twitter.
Damages – $120,000 for SMH poster publication.
Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237
Date of Decision: 20 August 2015
Court: Supreme Court of New South Wales Court of Appeal
Publication Media:
Article was published in the Sydney Morning Herald newspaper and also on-line on the publisher’s website, on Sydney Morning Herald Tablet App and via Sydney Morning Herald’s twitter account.
The on-line versions was/were taken down on the same day as the publication, following information that the wrong teacher had been identified in the article. An apology was also published.
Fairfax estimated view and/or readership of the Articles complained of to be:
Newspaper printed edition: 769,000;
Sydney Morning Herald Tablet App. – 9,129 unique views;
Twitter account- 1,155.[lxxxviii]
Categorisation of defamatory material:
Very serious defamation[lxxxix].
Article conveyed 3 defamatory imputations concerning the plaintiff.[xc]
Damages Award
Damages including aggravated damages – $350,000.
[Award of Trial Judge confirmed by Court of Appeal]
Jeffrey and Curnow v Giles [2015] VSCA 70
Date of Decision: 24 April 2015
Court: Supreme Court of Victoria Court of Appeal
Publication Media:
Website created by the defendant Giles. The length of time that the defamatory material had been on the website, visible to visitors, was between five and seven months. Offending material was not removed even after a letter from the Plaintiffs’ lawyers had been received[xci].
Categorisation of defamatory material:
Defamatory imputations were “serious”[xcii].
The defamatory statements were published on the website.
Damages Award
Damages- $75,000 against Jeffrey.
Damages- $65,000 against Curnow.
No aggravated damages awarded, however material supporting claim for aggravated damages was taken into account in the compensatory damages award[xciii].
Duffy v Google Inc. [2015] SASC 206
Date of Decision: 23 December 2015
Court: Supreme Court of South Australia
Publication Media:
Publication by Google via its Australian website between January and December 2010 of paragraphs containing extracts (snippets) from and hyperlinks to two webpages on the ripoffreport.com website[xciv]. In 2010 there had been approximately 1200 Google key word searches undertaken in respect of different forms of the plaintiff’s name[xcv].
Categorisation of defamatory material:
The imputations were serious and inherently damaging[xcvi].
Imputations defamatory of the plaintiff were various.[xcvii]
Damages Award
Damages – $100,000.
Damages awarded were only for loss caused by publications by Google in 2010 and not the overall loss suffered by reason of all the on-line publications over the entire period by all media[xcviii].
It is to be noted that the plaintiff had also brought separate actions against Yahoo in respect of Yahoo search results and against Microsoft in respect of Bing search results.
Claim for economic loss not established.
Aggravated damages not awarded.
*This article is an update of the article entitled Damages for On-line Defamation 2015-2016, authored by Katarina Klaric. The research assistance in compiling the list of cases (for 2017 to June 2018) of Emma Contebardo and (for July 2018 to October 2019) of Massimo Chiantia, is acknowledged.
This update is not intended to a substitute for obtaining legal advice.
© Stephens Lawyers & Consultants. October 2019.
For further information contact:
Katarina Klaric
Principal
Stephens Lawyers & Consultants
Suite 205, 546 Collins Street
Melbourne VIC 3000
Phone: (03) 8636 9100
Fax: (03) 8636 9199
Email: [email protected]
Website: www.stephens.com.au
All Correspondence to:
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Collins Street West
Melbourne VIC 8007
[i] Rothe v Scott (No.4) [2016] NSWDC 160. Gibson DCJ at para. 140.
[ii] Rebel Melanie Elizabeth Wilson v Bauer Media Pty Ltd & Another [2017] VSC 521.
[iii] Bauer Media Pty Ltd & Anor v. Rebel Melanie Elizabeth Wilson [2018] VSCA 154
[iv] Defamation Act, s. 35(1); NSW Government Gazette No 56 of 26.5.2017, p 1782; Victorian Government Gazette No. G 22 of 1.6.2017, p 1006 and G 22 of 31.5.2018, p 1202, and No 55 of 31.5.2019, p 1665 (amount declared: $407,500).
[v] Defamation Act, s35(2).
[vi] Cassell & Co. Ltd v Broome [1972] AC 1027, 1070-1071; Followed in Hardie v The Herald and Weekly Times Pty Ltd and Anor [2016] VSCA 103, para 81.
[vii] Defamation Act, s 34.
[viii] Mickle v. Farley [2013] NSWDC 295.
[ix] Jeffrey and Curnow v Giles [2015] VSCA 70.
[x] [2017] VSC 521, [140]
[xi] [2018] VSCA 154.
[xii] Defamation Act, s. 35(2).
[xiii] Hardie v The Herald and Weekly Times Pty Ltd and Anor [2016] VSCA 103, para 65.
[xiv] Bauer Media Pty Ltd & Anor v. Rebel Melanie Elizabeth Wilson [2018] VSCA 154 at [224],[225],[228],[249]-[250]
[xv] Jeffrey v Giles [2015] VSCA 70, [83]. The conduct relied upon for aggravated damages by the Plaintiff, was taken into account in awarding damages, although no aggravated damages were awarded.
[xvi] [2015] NSWCA 237 [172], [173].
[xvii] [2017] VSC 521, [157]
[xviii] [2017] VSC 521, [161]-[163].
[xix] [2017] VSC 521, [163]. Also see: McCrohon v Harith [2010] NSWCA 67, [118]-[126] (McColl JA); JLW (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237, 245-6 (Brooking J)
[xx] [2017] VSC 521, [311]-[313]. The analytical framework was proposed by Finkelstein J in La Trobe (2011) 190 FCR 299 and has been applied by other members of the court with different variables. This approach was not applied by the Court in Wilson v Bauer Media [2017]VSC 521.
[xxi] [2017] VSC 521, [137], [138]
[xxii] [2017] VSC 521, [137], [164]
[xxiii] [2017] VSC 521, [223]-[226].
[xxiv] [2017] VSC 521, [276]-[281].
[xxv] [2017] VSC 521, [282]-[293].
[xxvi] [2017] VSC 521, [206]-[211].
[xxvii] [2017] VSC 521, [189]-[191].
[xxviii] [2017] VSC 521, [294]-[297], [309].
[xxix] Bauer Media Pty Ltd & Anor v. Rebel Melanie Elizabeth Wilson [2018] VSCA 154, [289].
[xxx] Ibid, [487].
[xxxi] Ibid, [515].
[xxxii] Ibid, [429], [474].
[xxxiii] Ibid, [334],[420]-[421] [471]-[473].
[xxxiv] Ibid, [477].
[xxxv] Ibid, [482],[484].
[xxxvi] Ibid, [482],[483].
[xxxvii] [2019] NSWDC 98 [213] as in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37, at pp 575-576, at [134].
[xxxviii] [2019] FCA 185 [325].
[xxxix] [2018] NSWSC 1838 [30]
[xl] [2018] NSWSC 1838 [30].
[xli] [xli] [2018] WASC 361 [24]..
[xlii] [2018] QSC 201 [788].
[xliii] [2017] VSC 521, [8].
[xliv] [2017] VSC 521, [334].
[xlv] [2018] ACAT 45, [1]-[2] & [12]-[16].
[xlvi] [2018] ACAT 45, [104], [139]-[141].
[xlvii] [2018] ACAT 45, [204].
[xlviii] [2018] ACAT 45, [265].
[xlix] [2017] WASC 367, [1]-[2] & [74].
[l] [2017] WASC 367, [910].
[li] [2017] SASC 159, [9].
[lii] [2017] SASC 159, [173].
[liii] [2017] SASC 159, [430].
[liv] [2017] SASC 159, [431].
[lv] [2017] NSWSC 996, [2].
[lvi] [2017] NSWSC 996, [117].
[lvii] [2017] NSWSC 996, [122].
[lviii] [2017] NSWSC 996, [115].
[lix] [2017] VSC 380, [26].
[lx] [2017] NSWSC 726, [4].
[lxi] [2017] NSWSC 726, [4]-[11].
[lxii] [2017] NSWSC 726, [116].
[lxiii] [2017] NSWSC 726, [121] and [127].
[lxiv] [2017] NSWSC 726, [122] and [127].
[lxv] [2017] NSWSC 726, [126]-[127].
[lxvi] [2016] ACTSC 344, [56].
[lxvii] [2016] ACTSC 344, [8], [9].
[lxviii] [2016] ACTSC 344, [9].
[lxix] [2016] ACTSC 344, [55].
[lxx] [2016] ACTSC 344, [70].
[lxxi] [2016] QSC 266, [9].
[lxxii] [2016] QSC 266, [34].
[lxxiii] [2016] QSC 266, [35].
[lxxiv] [2016] WASC 320, [49].
[lxxv] [2016] WASC 320, [68].
[lxxvi] [2016] WASC 320, [308]-[309].
[lxxvii] [2016] WASC 320, [308] and [310].
[lxxviii] [2016] WASC 320, [324]-[331].
[lxxix] [2016] NSWSC 1091, [161].
[lxxx] [2015] ACTSC 106.
[lxxxi] [2015] ACTSC 106, [120].
[lxxxii] [2016] NSWDC 160, para 79 and 80.
[lxxxiii] [2016] NSWDC 160, para 113.
[lxxxiv] [2016] VSC 201, [81].
[lxxxv] [2016] VSCA 103, [87].
[lxxxvi] [2015] FCA 652, [5], [515].
[lxxxvii] [2015] FCA 652, [515].
[lxxxviii] [2015] NSWCA 237, [98].
[lxxxix] [2015] NSWCA 237, [184].
[xc] [2015] NSWCA 237, [104].
[xci] [2015] VSCA 70, [9].
[xcii] [2015] VSCA 70, [83].
[xciii] [2015] VSCA 70, [83].
[xciv] [2015] SASC 206, [2].
[xcv] [2015] SASC 206, [114].
[xcvi] [2015] SASC 206, [117].
[xcvii] [2015] SASC 206, [2].
[xcviii] [2015] SASC 206, [131].