Stephens Lawyers & Consultants
Recent awards of damages by courts for online defamation continue to serve as a warning to reviewers, bloggers, influencers and business competitors that care should be taken to ensure that the content posted online is factually correct and not defamatory. Individuals seeking 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 IT forensic/cyber experts or pre-trial discovery from social media companies and/or telecommunications companies.
A Gold Coast cosmetic surgeon was recently awarded $420,000 for damages for non-economic loss including aggravated damages in a defamation action for false reviews posted anonymously by the respondents on the RateMDs website, a doctor rating site for the public/clients which claims to have “over 40 million visits every year.” [i] The respondents’ identity was ascertained through the use of an IT forensic/cyber expert – one of the respondents was a business competitor – another Gold Coast cosmetic surgeon.
Further, companies, organisations or individuals who create and administer Facebook pages or pages on other networking platforms, which encourage or facilitate the posting of comments or content by third party users, will also be liable as publishers for third party defamatory content or comments that have posted on their pages. Google, the owner of YouTube, was ordered by the Federal Court of Australia to pay the Applicant, Mr Barilaro, $675,000 in general and aggravated damages in respect of a YouTube video which had been created and uploaded by a third party on YouTube. The Court found that Google was the publisher of “all the content posted on YouTube” because Google had “structured its business model to enable persons to post videos and comments on YouTube as freely as possible while it used the posted material as a vehicle to earn advertising revenue.” [ii] Google and other search engines will also be liable for the publication of defamatory third party content or reviews published as a part of search results or by using the “business review” functionality provided by Google or other platforms.
This update provides a review of the damages awarded in recent online defamation cases (during the period March 2022 to 1 December 2022) and some of the factors taken into account by courts in awarding damages.
[For a review of damages awarded in online defamation cases during the period July 2019 to February 2022 see Stephens Lawyers & Consultants’ ‘Defamation for On-line Defamation – Recent Cases’ HERE]’
For a review of damages awarded in online defamation cases during the period 2015 to June 2019 see Stephens Lawyers & Consultants’ ‘Defamation for On-line Defamation – Recent Cases’ HERE]
Recent Selected Cases – 1 March 2022 to 1 December 2022
Wellington v Metcalf  VCC 1759
Date of Decision: 21 November 2022
Court: County Court of Victoria at Melbourne
Publication Media: The plaintiff, a local councillor on the Surf Coast Shire, objected to seven posts made during council elections on the Facebook Page of the Defendant, a ratepayer, which the plaintiff alleged defamed her. The Facebook Page was accessible by the public and the allegedly defamatory posts were still available at the time of judgement – though there was no evidence that they were widely read.
Categorisation of Defamatory Material: Her Honour Judge Clayton was satisfied that:-
- “in a small community such as Surf Coast Shire, and particularly in the context of a council election, there would be a significant grapevine effect at play”[iii] – though this effect was not found to extend beyond the Surf Coast Shire;
- the evidence provided showed that the effect on the plaintiff of the defamatory material was significant and continued to the present day – and included hurt, distress and worry that it had and would affect her professional reputation;
- the posts went “well beyond the sort of ‘unfair’ criticism one might expect as a local councillor. They make allegations of corruption, obsession, lying, and fraud”[iv] – but Her Honour was not satisfied that the posts “caused any widespread or significant actual harm to the plaintiff’s otherwise excellent reputation”[v].
Damages Awarded: The Defendant was ordered to pay the Plaintiff damages in the amount of $100,000 which included a component for aggravated damages.
Martin v Najem  NSWDC 479
Date of Decision: 17 October 2022
Court: New South Wales District Court
Publication Media: The Plaintiff was a food blogger, promoting and reviewing food venues online – and working in paid partnership with venues and business to advertise and promote them. The defendant also described himself as a social media “influencer” who published blogs on Instagram on food-related issues. The Plaintiff’s action concerned allegedly defamatory material contained in two videos published on the Defendant’s Instagram accounts which heralded the beginning of a “campaign of abuse’[vi] against the Plaintiff.
Categorisation of Defamatory Material: Based on the evidence provided, Justice Gibson made the following findings:-
- the imputations included “that most terrible of allegations”[vii] – which had been much repeated;
- there was strong evidence of an extensive grapevine effect;[viii]
- the publications were “unique, in terms of serious harm considerations, in that the Defendant is actually threatening the Plaintiff with serious physical and professional harm”[ix];
- the harm and damage caused to the Plaintiff (including his health) was serious – and included concerns about his security;
- the matters complained of (and subsequent videos) evidenced a malicious campaign against the plaintiff’s business – and an attack which was “very personal”[x] which encouraged others to similarly attack the Plaintiff, which they did.
Damages Awarded: Justice Gibson made an award of $300,000 including aggravated damages, plus interest.
In addition, Justice Gibson granted a permanent injunction – that the Defendant be “permanently restrained from publishing, or causing to be published, any matter that conveys any one or more of the [specified] imputations, or imputations not differing in substance, of and concerning the Plaintiff…”[xi].
[NB: This is the first time that damages were assessed under the amendments to the Defamation Act 2005 (NSW which came into force on 1 July 2021.]
Molan v Dailymail.com Australia Pty Ltd  FCA 1004
Date of Decision: 30 August 2022
Court: Federal Court of Australia
Publication Media: The applicant, a prominent sports presenter, commentator and media personality, complained about allegedly defamatory material in multiple online publications by the respondent, including, in particular:-
- in an article published in the respondent’s online/website newspaper on 5 June 2022 (the ‘Online Article’);
- in two tweets published on 5 June and 6 June 2022 (respectively).
Categorisation of Defamatory Material: His Honour Justice Bromwich held that:-
- only the first 5 of the 8 alleged imputations were conveyed by the Online Article – and, in particular, the 6th (and more serious) alleged imputation of racism was not conveyed;
- the “defamatory allegations, while hurtful, are not at the higher levels of seriousness and despite remaining online have not been demonstrated to be of an enduring nature” or to “have the consequence that she is unlikely to continue to be successful in her career”[xii]; and
- while the audience was substantial in number, it was “only in the transient and evanescent medium of an online publication”[xiii].
Damages Awarded: The respondent was ordered to pay the applicant $150,000 plus interest (at half the pre-judgment rate of interest as at the time of judgment).
Palmer v McGowan (No 5)  FCA 893
Date of Decision: 2 August 2022
Court: Federal Court of Australia
Publication Media: The applicant, Mr Palmer, a prominent political figure and businessman issued proceedings against the respondent, Mr McGowan, Premier of Western Australia in respect of 6 matters, and Mr McGowan cross-claimed against the Mr Palmer in respect of 9 matters – arising “out of a prolonged and heated dispute between [them] dealing, at least in large part, with matters best described as political”[xiv] – published in print, online media, on television, radio and on social media and containing allegedly defamatory material about each other. The dispute occurred within the context of the COVID-19 pandemic, the controversy as to the Western Australian “hard border” and proposed enactment of legislation affecting a High Court ‘border’ proceeding against the State by Mr Palmer.
The extent of publication and republication, including online, was extensive – and the material was read widely.
Categorisation of Defamatory Material: Hi Honour Justice Lee acknowledged that “colourful language [was] deployed”[xv] by each party which included defamatory allegations, but also noted that:-
- balanced against the considerable privileges afforded a political figure, “are the costs or downsides of a political profile, including the reality that such figures must expect a degree of public criticism, fair or unfair, not usually visited upon other members of the public”[xvi] and that “at a time when public resources devoted to courts are under strain, and judicial resources are stretched, one might think that only a significant interference or attack causing real reputational damage and significant hurt to feelings should be subject of an action for defamation by a political figure”[xvii];
- Both Mr Palmer and Mr McGowan, had “chosen to be part of the hurly-burly of political life” and that “Many members of the public will have instinctive views about them absent any personal interaction”[xviii]; and
- “one cannot forget that we are dealing with two political opponents during a period when they were clashing”[xix].
Accordingly, His Honour found:-
- that the evidence showed that Mr Palmer had sustained “very minor” harm as a result of the defamatory matters and the amount of damages awarded should, as a consequence, be “very minor”[xx]; and
- that while damage to Mr McGowan’s reputation was “non-existent” and may actually have been enhanced, Mr McGowan’s evidence supported “a level of subjective hurt” suffered as a result of the false and defamatory allegations for which non-economic damages were appropriate – even though he was the Premier of Western Australia and “robust criticism is, and should be, part and parcel of the job.”.[xxi]
Damages Awarded: Ordered:-
- That Mr McGowan pay Mr Palmer $5,000 in damages on the amended statement of claim – and given the size of the award, no interest[xxii]; and
- That Mr Palmer pay Mr McGowan $20,000 in damages on the amended cross-claim – and given the size of the award, no interest
Curtis v Jason Victor Bishop trading as Canberra Notice Board (Civil Dispute)  ACAT 59 [xxiii]
Date of Decision: 29 June 2022
Court: ACT Civil and Administrative Tribunal (Senior Member Prof P Spender)
Publication Media: The applicant’s claim against the respondent was based on alleged defamatory material posted by third parties on a public Facebook page for which the respondent was the administrator and moderator – and which the applicant alleged amounted to trolling of the applicant and her business.
Categorisation of Defamatory Material: The Tribunal found that:-
- the ordinary and natural meaning of the words complained of was defamatory in that the words “tend to lower the applicant’s reputation in the eyes of the relevant audience”[xxiv];
- the defamatory matter was available to be viewed for between two days and up to a month;
- the evidence showed that while the number of persons who saw the defamatory material was “unlikely to have been in the thousands”,the audience was “small but not insubstantial”.
Damages Awarded: The respondent ordered to pay the applicant:
- $3,500 in damages;
- plus $162.50 filing fees;
- plus $9 ASIC search fees.
Hockings v Lynch & Adams  QDC 127
Date of Decision: 8 June, 2022
Court: District Court of Queensland
Publication Media: The plaintiff, Ms Hocking, complained about the publication of a series of 24 comments (or series of comments) made on Facebook (with one instance on Twitter) by the defendants, Ms Lynch and Ms Adams either individually or sometimes by both of them, over the period 28 October 2018 to 6 July 2019. The comments arose out of the differing views between the plaintiff and the defendants about a divisive issue in the community (the proposed location of the hospital). Some of the Facebook pages were private and others were in the public domain. There was evidence that some of the original posts were liked, commented upon or shared.
Justice Dann found that the extent of publication was impacted by ‘the grapevine effect’ and that “the defamatory posts on the Relocate FB Page, the Tweed Daily News FB Page and the Bill Fenlon for the Green FB page have been published to in the order of many hundreds of people”.[xxv]
Categorisation of Defamatory Material: Justice Dann found that:-
- there were “a significant number of serious defamatory comments made”[xxvi] about the plaintiff “widely in the community where she lived and worked”;
- evidence showed that some members of the community did not think less of the plaintiff because of the persistent attacks being made upon her by the defendants; and
- even though the plaintiff accepted there was no specific evidence of harm being done to her personal and business reputation, “some damage has been done to that reputation by the defamatory comments”[xxvii]
Damages Awarded: Orders made that:-
- The first defendant (Lynch) pay the plaintiff (Hocking) $140,000 in damages (including aggravated damages) plus interest in the amount of $12,250
- The second defendant (Adams) pay the plaintiff $50,000 in damages plus interest in the amount of $4,375
- The first defendant and the second defendant jointly pay the plaintiff $25,000 in damages plus interest in the amount of $2,187.50
Barilaro v Google LLC  FCA 650
Date of Decision: 6 June, 2022
Court: Federal Court of Australia
Publication Media: The Applicant, Mr Barilaro, sued the Respondent (Google LLC) in relation to two (2) videos (the ‘Videos’) created and uploaded on YouTube by Mr Jordan Shanks (known online as friendlyjordies) who was a prior respondent in the proceedings. The Videos which were first uploaded in September and October 2020 respectively contained false and defamatory matter about the Applicant and his lawyers.
Categorisation of Defamatory Material:
His Honour Justice Rares accepted the Applicant’s evidence that each of the defamatory imputations arising from the Videos were false[xxviii] and found that “this is a most serious case” which resulted in the Applicant being “driven prematurely from office so that the judgment sum, necessarily, will have to reflect the very substantial damage done to his feelings, his reputation, the need to nail the lie and to vindicate him to the public.”[xxix]
His Honour further noted matters the court is entitled to take into account in assessing damages, which in this case included the “the “grapevine effect” of the publication complained of”[xxx].
Justice Rares found that Google was a publisher of “all the content posted on YouTube”[xxxi] and that Google “structured its business model to enable persons to post videos and comments on YouTube as freely as possible while it used the posted material as a vehicle to earn advertising revenue.” [xxxii]
General and aggravated damages awarded to Mr Barilaro as follows:-
- plus $40,000 of pre-judgement interest.
Aurisch & Anor v Wilson  VCC 720
Date of Decision: 13 May 2022
Court: County Court of Victoria
Publication Media: The plaintiff was the owner and sole director of the 2nd plaintiff, Unique French Bulldogs Pty Ltd (‘UFB’), through which she operated the business of breeding and selling French Bulldogs. The plaintiff’s complaint concerned four defamatory posts about the plaintiff’s business made by the defendant on the Reviews section of the UFB Facebook page to which the public at large had access.
- noted the evidence that the UFB Facebook Page had some 53,000 followers (which was not disputed) and that the first post was accessible for just under 2 months and the remaining 3 posts were accessible to the public for 2 to 4 weeks.
- also took into account the “grapevine effect”, and was “satisfied that the posts were published to a substantial number of persons who had an interest in the breeding and/or purchase of French Bulldog puppies and a particular interest in the plaintiffs’ breeding business.” “[xxxiii]
- rejected the triviality defence, finding that “the very nature of the four publications, the subject of the claim, and the imputations arising from each of them, was likely to harm and did harm the reputation of the plaintiffs.”[xxxiv]
- noted that no apology had been made by the defendant within the meaning of that term in s38(1) of the Defamation Act 2005 (Vic).[xxxv]
Categorisation of Defamatory Material: Justice Smith found that the imputations were “serious and made in circumstances where they were not necessary or genuine”.”[xxxvi]
Damages Awarded: Justice Smith ordered the defendant to pay the plaintiffs (on a joint and several basis):-
- damages in the sum of $115,000 which includes aggravated damages in the sum of $15,000;
- plus interest at the rate of 3% per annum[xxxvii];
- plus the costs of the plaintiffs of and incidental to this proceeding (including any reserved costs) on a standard basis in accordance with the rules of the County Court.
Colagrande v Kim  FCA 409
Date of Decision: 21 April 2022
Court: Federal Court of Australia
Publication Media: The Applicant, a medical practitioner and cosmetic surgeon practising on the Gold Coast, had an account on the RateMDs website (the ‘Website’), a doctor rating site for the public/patients, which was self-described as having “over 40 million visits every year”. The applicant’s complaint concerned defamatory matter in a false review (the ‘False Review’) posted anonymously on the Website by the respondents (whose identity was found by using the services of a cyber security expert). The first respondent was also a medical practitioner and cosmetic surgeon practising on the Gold Coast.
The False Review had remained on the Website “from June 2020 (12 months before the commencement of the proceeding) to September 2021”.[xxxviii]
Categorisation of Defamatory Material: His Honour Justice Jagot:-
- found that the conveyed defamatory imputations carried “a serious sting and stigma for any person, but particularly a doctor”[xxxix] and were “among the gravest that can be alleged against a practicing (sic) medical practitioner”[xl];
- accepted that the applicant “was profoundly hurt and distressed, indeed re-traumatised”[xli] by the False Review;
- took into account a number of aggravating factors including the respondents’ failure to apologise and an inferred motive of “the first respondent to damage a commercial competitor and the second respondent to assist the first respondent in achieving that object”.[xlii]
Damages Awarded: The respondents ordered to pay the applicant:-
- damages for non-economic loss, including aggravated damages, in the sum of $420,000;
- special damages in the sum of $31,511.29;
- plus interest
Co-Authored by Katarina Klaric, Principal, Stephens Lawyers & Consultants and Rochina Iannella, Lawyer, Stephens Lawyers & Consultants.
This update is not intended to be a substitute for obtaining legal advice.
© Stephens Lawyers & Consultants.7 December 2022.
For further information contact:
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[i] Colagrande v Kim  FCA 409
[ii] Barilaro v Google LLC  FCA 650 
[iii] Wellington v Metcalf  VCC 1759 
[iv] Ibid. 
[v] Ibid. 
[vi] Martin v Najem  NSWDC 479 
[vii] Ibid. 
[viii] Ibid. [71.6]
[ix] Ibid. [71.1]
[x] Ibid.  
[xi] Ibid. [142, Order 3]
[xii] Molan v Dailymail.com Australia Pty Ltd  FCA 1004 [249 (c)]
[xiii] Ibid. [249 (d)]
[xiv] Palmer v McGowan (No 5)  FCA 893 
[xv] Ibid. [Catchwords]
[xvi] Ibid. 
[xvii] Ibid. 
[xviii] Ibid. 
[xix] Ibid. 
[xx] Ibid. 
[xxi] Ibid. 
[xxii] Ibid. 
[xxiii] Curtis v Jason Victor Bishop trading as Canberra Notice Board (Civil Dispute)  ACAT 59 
[xxiv] Ibid. 
[xxv] Hockings v Lynch & Adams  QDC 127 [ 302]
[xxvi] Ibid. [ 341]
[xxvii] Ibid. [ 339]
[xxviii] Barilaro v Google LLC  FCA 650 
[xxix] Ibid. 
[xxx] Ibid. [295 – 298]
[xxxi] Ibid. 
[xxxii] Ibid. 
[xxxiii] Aurisch & Anor v Wilson  VCC 720 
[xxxiv] Ibid. 
[xxxv] Ibid. 
[xxxvi] Ibid. [134(a)]
[xxxvii] Ibid.  
[xxxviii] Colagrande v Kim  FCA 409 
[xxxix] Ibid. 
[xl] Ibid. 
[xli] Ibid. 
[xlii] Ibid.,