by Katarina Klaric, Principal, Stephens Lawyers & Consultants
Publication of defamatory comments on websites and 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” [1]. 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. 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 and also any economic loss 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 damages that can be awarded, which currently is $381,000 [2]. There is no limitation on the amount of economic loss that can be awarded by the courts.
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 [3]. 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” [4].
Awards of 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 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 [5].
- The extent of publication of the defamatory material. In the case of:
(a) websites, the number of on-line subscribers and visitors to the site;
(b) Facebook and other social media, the number of social media friends and the extent of distribution beyond those friends;
(c) 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 [6].
Aggravated Damages
In addition to compensatory damages, the defamed party can claim aggravated damages [7] 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” [8]. There is no limit on the amount of aggravated damages that can be awarded by the Court in defamation proceedings.
Damages can be increased [9] or aggravated damages awarded, where there has been:
1. Failure by the publisher to properly investigate the matter before publishing the material [10].
2. An unjustified failure to apologise or retract the defamatory publication;
3. An unjustified failure to take down or remove defamatory material from websites and social media and business on-line sites;
4. Unjustified persistence in making untrue allegations;
5. Conducting a defence in a manner which is not justified, improper or lacking bona fides.
Recent Defamation Cases – Damages Awards
Cases 2015-2016
Rothe v Scott (No.4) [11]
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 [12].
Categorisation of defamatory material:
The defamatory posts published were of an “extreme kind” and made without factual basis [13].
Damages Award
Damages- $100,000
Aggravated damages- $50,000
Dods v McDonald (No.2) [14]
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 [15].
Damages Award
$150,000 including aggravated damages
Hardie v The Herald Weekly Times Pty Ltd [16]
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 [17].
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 [18]
Publication Media:
Publication on Twitter by the Age.
Also published on SMH poster.
Categorisation of defamatory material:
Twitter matter conveyed the imputation alleged [19].
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 [20].
Damages Award
Damages – $80,000 for publication on Twitter.
Damages – $120,000 for SMH poster publication
Fairfax Media Publications Pty Ltd v. Pedavoli [21]
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 [22]
Categorisation of defamatory material:
Very serious defamation [23].
Article conveyed 3 defamatory imputations concerning the plaintiff [24].
Damages Award
Damages including aggravated damages – $350,000.
[Award of Trial Judge confirmed by Court of Appeal]
Jeffrey and Curnow v Giles [25]
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 [26].
Categorisation of defamatory material:
Defamatory imputations [27] were “serious” [28].
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 [29].
Duffy v Google Inc.[30]
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 [31]. In 2010 there had been approximately 1200 Google key word searches undertaken in respect of different forms of the plaintiff’s
name [32].
Categorisation of defamatory material:
The imputations were serious and inherently damaging [33].
Imputations defamatory of the plaintiff were various [34].
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 [35].]
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.
Footnotes
1. Rothe v Scott (No.4) [2016] NSWDC 160. Gibson DCJ at para. 140
2. Defamation Act, s. 35(1); Gazette No. 50 of 17.6.2016, p 1406 (amount declared $381,000)
3. 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.
4. Defamation Act, s 34.
5. Mickle v. Farley [2013] NSWDC 295
6. [2015] VSCA 70
7. Defamation Act, s. 35(2)
8. Hardie v The Herald and Weekly Times Pty Ltd and Anor [2016] VSCA 103, para 65
9. 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.
10. [2015] NSWCA 237 [172], [173].
11. [2016] NSWDC 160
12. [2016] NSWDC 160, para 79 and 80.
13. [2016] NSWDC 160, para 113.
14. [2016] VSC 201
15. [2016] VSC 201, [81]
16. [2016] VSCA 103
17. [2016] VSCA 103, [87]
18. [2015] FCA 652.
19. [2015] FCA 652, [5], [515]
20. [2015] FCA 652, [515]
21. [2015] NSWCA 237
22. [2015] NSWCA 237, [98]
23. [2015] NSWCA 237, [184]
24. [2015] NSWCA 237, [104]
25. [2015] VSCA 70
26. [2015] VSCA 70, [9].
27. [2015] VSCA 70, [5]
28. [2015] VSCA 70, [83]
29. [2015] VSCA 70, [83]
30. [2015] SASC 206
31. [2015] SASC 206, [2]
32. [2015] SASC 206, [114]
33. [2015] SASC 206, [117]
34. [2015] SASC 206, [2]
35. [2015] SASC 206, [131]
© Stephens Lawyers and Consultants 17 August 2016
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:
PO Box 16010
Collins Street West
Melbourne VIC 8007
Authored by Katarina Klaric
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