Stephens Lawyers & Consultants
Publication of defamatory comments on websites, social media and business networking platforms such as Facebook, Twitter, Instagram and LinkedIn can cause 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 defamation continue to serve as a warning to all involved in posting content online that care must be taken to ensure that there is a factual basis for what is published. Further, companies, organisations or individuals who create and administer public Facebook pages or pages on other networking platforms, which encourage or facilitate the posting of comments or content by third party users, will be liable as publishers for third party defamatory content or comments that have been posted on their pages[ii].
In the recent decision of Rush v Nationwide News Pty Limited (No 7) [2019][iii] the Federal Court rejected the Respondent’s defence of justification on the basis of, inter alia, lack of credibility of its principal witness and failure to corroborate the principal witness’ evidence, and awarded actor Geoffrey Rush almost $2.9million in damages in respect of three publications of Nationwide News which were found to be seriously defamatory. On appeal by Nationwide News, the Full Federal Court dismissed the appeal and upheld the Federal Court’s damages award – which included an award of $850,000 for compensatory/non-economic loss including aggravated damages.[iv]
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.
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 $432,500[v] . However, as seen in recent cases of Rush v Nationwide News Pty Limited and Thunder Studios Inc (California) v Kazal (No 12) [2022],, 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 There is no limitation on the amount of economic loss that can be awarded by the courts.
This update provides a review of the damages awarded in recent defamation cases (during the period July 2019 to February 2022) and some of the factors taken into account by courts in awarding damages.
[For a review of damages awarded in on-line defamation cases during the period 2015 to June 2019 see Stephens Lawyers & Consultants’ ‘Defamation for On-line Defamation – Recent Cases [updated October 2019]’ See HERE.]
Cases July 2019 – February 2022
Thunder Studios Inc (California) v Kazal (No 12) [2022] FCA 110
Date of Decision: 18 February, 2022
Court: Federal Court of Australia
Publication Media: The Second Applicant, Rodric Marc David and his company, Thunder Studios Inc. (the First Applicant) sued former business partners Charif Kazal (the First Respondent) and his brother, Adam Kazal (the Second Respondent) in relation to a prolonged campaign against Thunder Studios, Mr David and his family which included false and menacing publications and republications which started in June 2013 and continued after Mr David and his family moved to Los Angeles and until the trial – including publications on the Respondents’ website and posts on the Facebook walls of LA Biz and backstage and on LinkedIn and Pinterest..
The Respondents also used their respective Twitter accounts to “enhance the prominence of the Kazal website in search engine optimisation of results returned for persons seeking information about Mr David and to drive readers to the Kazal website”[vi]
Categorisation of Defamatory Material:
Justice Rares found that “The conduct of both Adam and Charif since 2013 up to the trial has resembled a concerted, continuous campaign by both of them to vilify and denigrate Mr David and Thunder” and that “The campaign was conducted as a vendetta”[vii]
His Honour also accepted Mr David’s evidence “as to his hurt to feelings, fear and sense of helplessness at the incessant and intensifying impact of the online and physical behaviours of Charif, Adam and other members of their family on the Kazal website.”[viii]
Damages Awarded:
Justice Rares acknowledged “the emotional scarring of the years of traumatising behaviour to which the Kazals have subjected Mr David and his family”[ix]
His Honour also found that during the conduct of the trial the respondents made unjustified aspersions on Mr David’s character which further aggravated the damage.[x]
Justice Rares awarded higher damages against Adam finding that Adam’s overall conduct and behaviour “was significantly more threatening and malicious (as communicated to and perceived by Mr David) than even Charif’s extraordinary behaviour. [xi]
In making an award for significant pre-judgement interest His Honour reflected that “the amount of damages needed to vindicate Mr David has not diminished over time but rather has increased and the hurt to his feelings has intensified.[xii]
- General and aggravated damages awarded to Mr David (Second Applicant) as follows:-
- against Charif Kazal (First Respondent): $400,000 plus $125,000 of pre-judgement interest;
- against Adam Kazal (Second Respondent): $600,000 plus $225,000 of pre-judgement interest
2. Compensatory and aggravated damages awarded to Thunder Studios Inc (First Applicant) as follows:-
- against Charif Kazal (First Respondent): $50,000 plus $15,000 of pre-judgement interest;
- against Adam Kazal (Second Respondent): $75,000 plus $22,500 of pre-judgement interest.
Justice Rares based the damages awarded to Thunder Studios “on the persistence in and ever increasing attempts to widen the reach of publication of the matters complained of”[xiii].
However, Justice Rares excluded from the damages awarded, the damage to the reputations of Mr David and Thunder Studios from publications of the matters complained of in the United States of America as the relevant law in the United States, dealing with damage to reputation by defamatory publication, is substantively different from the law in Australia.[xiv]
Turtur AO v Connor [2021] SADC 127
Date of Decision: 17 November 2021
Court: District Court of South Australia
Publication Media: The Applicant, an Olympic Cycling Gold medallist and well-known South Australian sporting identity, sued the Respondent over her publication of three (3) separate Facebook posts on 30 March 2019 on the Respondent’s ‘public’ Facebook profile.
The Applicant became aware of the Respondent’s posts on 31 March, 2019 but, for personal business reasons, held off sending a Concerns Notice to the Respondent until 27 March 2020. It was received by the Respondent on 1 April 2020 – being the first time that the Respondent became aware of the Applicant’s concerns – upon which the Respondent immediately removed the posts from her Facebook profile and, on 3 April 2020, sent a letter of apology to the Applicant’s lawyers but her apology was not accepted.
Categorisation of defamatory material:
Justice Schammer held that the first 2 posts were defamatory and resulted in the Applicant suffering “genuine feelings of distress, hurt and anger as a result of the posts”[xv] making it “appropriate for a modest award of damages to be made to vindicate the Applicant and his reputation”[xvi]
Damages Awarded
Justice Schammer found that while the posts were accessible online for 1 year and 2 days to a potentially extensive audience, the submitted evidence showed that only a very limited number of that potential audience interacted with and actually read the posts. Her Honour also found that at the time of the posts the Applicant was, and remained, highly regarded within the community and that he continued to have a high reputation for honesty and integrity.
- General Damages – $30,000.00
- Aggravated Damages: Justice Schammer declined to award aggravated damages,.
Nettle v Cruse [2021] FCA 935
Date of Decision: 11 August 2021
Court: Federal Court of Australia
Publication Media: The Applicant, a Sydney plastic and reconstructive surgeon, sued the Respondent over four publications which were uploaded to websites including “complaintwire”, “complaintsboard”, “internetcheaters”.
Categorisation of defamatory material:
Justice Wigney held that the Respondent’s attacks on Dr Nettle were “sustained, fair-reaching and virulent…full of falsehoods, gross misrepresentations of the facts, entirely unjustified criticisms of Dr Nettle and the publication of statements, and in some cases images, that appear to have been calculated to inflict maximum damage of Dr Nettle’s professional reputation”.[xvii]
Damages Awarded:
(a) Compensatory and aggravated damages together – $450,000.00.
Despite this award of damages, Dr Nettle may never be compensated by the Respondent because she “was unable to be located for the purposes of service” and had “effectively disappeared”.[xviii]
Dean v Puleio [2021] VCC 848
Date of Decision: 12 July 2021
Court: Victorian County Court
Publication Media: The Plaintiff, the proprietor of a periodontics and dental implants business, sued Ms Puleio, a former patient, over four reviews published on Google.
Categorisation of defamatory material:
Judge Clayton held that in this case “the imputations are serious, but not of the most serious kind”.[xix] The publications did not allege criminal conduct but did go to “Dr Dean’s reputation as a professional” and made “serious allegations about her personal conduct”.[xx]
Damages Awarded:
(a) Compensatory and aggravated damages together – $170,000.00
In awarding damages, Judge Clayton acknowledged that the publications were seen by around 100,000 people and had the flavour of a vendetta against Dr Dean. Mu Puleio’s conduct aggravated the injury to Dr Dean for reasons which included refusing to attend a mediation, threatening to report Dr Dean to the medical authorities and attempting to extract additional money from Dr Dean whilst using the promise to remove the review as leverage.[xxi]
BeautyFULL CMC Pty Ltd & Ors v Hayes [2021] QDC 111
Date of Decision: 16 June 2021
Court: District Court of Queensland
Publication Media: BeautyFULL Cosmetic Medical Centre, its founder and the founder’s children sued a former receptionist of the business over statements made in an Instagram story, a telephone call and a Facebook conversation.
Note that a post on an Instagram story remains accessible for only 24 hours unless it is added to the Instagram account as a highlight.
Categorisation of defamatory material:
Judge Reid held that each of the publications were intentionally false and were motivated by anger towards the Plaintiffs.[xxii] Drawing a comparison to Hocken v Morris [2011] QDC 115, Judge Reid found that similar considerations apply in that while the defamation was serious, it is unlikely, given the Plaintiffs standing in the local community, that the actual harm done to the Plaintiffs’ reputation was substantial even though the personal distress and hurt was experienced by the Plaintiffs.[xxiii]
Damages awarded:
(a) BeautyFULL CMC Pty Ltd was awarded $20,000.00 in compensatory damages;
(b) Founder of BeautyFULL CMC Pty Ltd was awarded $30,000.00 in compensatory and aggravated damages;
(c) Two children of founder were awarded $20,000.00 and $12,500.00 respectively in compensatory and aggravated damages.
Kumar & Anor v Raghupathy [2021] VCC 532
Date of the Decision: 6 May 2021
Court: Victorian County Court
Publication Media: The Plaintiffs, two brothers active in the Indian-Australian community and the Victorian Labor Party, sued the Defendant over a Facebook post on the Defendant’s Facebook page.
Categorisation of defamatory material:
Judge Clayton found that the publication “carried serious imputations about the good standing and ethics of the Plaintiffs” and that it is “likely to have tarnished their good reputations”.[xxiv]
Damages awarded:
(a) Compensatory damages for each brother was $100,000.00.
The Facebook page had about 2,625 “friends” and was followed by 843 people at the time of the publication.[xxv]
Murphy v Nationwide News Pty Ltd [2021] FCA 381
Date of the Decision: 19 April 2021
Court: Federal Court of Australia
Publication Media: The Applicant, a high profile Sydney lawyer, sued the Respondent over an article published online and in print in the Daily Telegraph.
Categorisation of defamatory material:
Justice Lee accepted that the publication carried an imputation of some seriousness which reflected on an “important part of Mr Murphy’s professional life in an inaccurate and misleading way”.[xxvi]
Damages awarded:
(a) Compensatory damages of $110,000.00.
The publication was “very extensive”[xxvii] and the internet article remained accessible at the date of judgement.[xxviii]
Lee & Ors v Sheen & Anor [2021] QDC 18
Date of the Decision: 12 February 2021
Court: District Court of Queensland
Publication Media: The Plaintiff, a Brisbane lawyer, sued the Defendant over a publication on the Chinese language social media platform WeChat.
Categorisation of defamatory material:
Judge Byrne held that the imputation carried was seriously defamatory in the context of a legal service provider, however did not carry the same opprobrium and broad public condemnation attaching to other more serious imputations.[xxix]
Damages awarded:
(a) Compensatory and aggravated damages together of $60,000.00.
Parke v Zivkovic & Ors [2021] VCC 41
Date of the Decision: 9 February 2021
Court: Victorian County Court
Publication Media: The Plaintiff, a Melbourne lawyer, sued the Defendants, Mr Zivkovic, Automotive Safety Engineering Pty Ltd [“ASE Pty Ltd”] and Impact Absorbing Systems Pty Ltd [“IAS Pty Ltd”], over a series of reviews on Google.
Categorisation of defamatory material:
Judge Tran accepted that the imputations “would be of a most serious nature for anyone, and were particularly so for Mr Parke, as a lawyer, elected councillor and community leader”.[xxx]
Damages awarded:
(a) Compensatory and aggravated damages payable by the first Defendant, Mr Zivkovic – $160,000.00.
(b) Compensatory and aggravated damages payable by the second Defendant, ASE Pty Ltd, in respect of the third review on Google – $30,000.00. Judge Tran explained that satisfaction by ASE Pty Ltd of the judgment against it would reduce the liability of Mr Zivkovic by an equivalent amount.[xxxi]
(c) Compensatory and aggravated damages payable by the third Defendant, IAS Pty Ltd, in respect of the fourth review on Google – $35,000.00. Judge Tran explained that satisfaction by IAS Pty Ltd of the judgment against it would reduce the liability of Mr Zivkovic by an equivalent amount.[xxxii]
Chau v Australian Broadcasting Corporation (No 3) [2021] FCA 44
Date of the Decision: 2 February 2021
Court: Federal Court of Australia
Publication Media: The Plaintiff, a Chinese-Australian billionaire and philanthropist, sued the Australian Broadcasting Corporation (ABC), Fairfax Media Publications Pty Limited and journalist Nick McKenzie, in relation to the ABC 4 Corners episode “Power and Influence: The hard edge of China’s soft power”, broadcast on the ABC on 5 June 2017, and in a related online article published by Mr McKenzie.
Categorisation of defamatory material:
Justice Rares held that the program “published untrue and seriously defamatory imputations about Dr Chau” which were “otherwise indefensible”.[xxxiii]
Damages Awarded:
(a) Compensatory and aggravated damages together – $590,000.00
Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15
Date of Decision: 27 January 2021
Court: Federal Court of Australia
Publication Media:
The Plaintiff, a former director and Head of Venture Capital of Blue Sky Alternative Investments Limited, a listed asset manager, sued the Respondent in relation to an article published online and in print in The Australian Financial Review.
Categorisation of defamatory material:
The Court held that the imputations were “all defamations of some seriousness going to the heart of Dr Stead’s reputation.”[xxxiv]
Damages Awarded:
(a) Compensatory and aggravated damages together – $280,000.00
McEwan v McDaniel [2020] QDC 321
Date of Decision: 14 December 2020
Court: District Court of Queensland
Publication Media:
The Plaintiff, proprietor of Silverlake Australia Martial Arts, which supplies performance fighting clothing and equipment to the mixed martial arts industry in Australia, sued the Defendant over a video published on the Defendant’s Facebook account.
Categorisation of defamatory material:
District Court Judge Sheridan held that “[i]n this case some of the words were little more than abusive”.[xxxv]
Damages awarded:
(a) Compensatory damages – $100.00.
Geyer v Ghosn [2020] NSWDC 744
Date of Decision: 9 December 2020
Court: District Court of New South Wales
Publication Media:
The Plaintiff, the daughter of former NRL player and commentator Mark Geyer, sued the Defendant over two Facebook posts.
Categorisation of defamatory material:
The Court held that “the false allegations made about the plaintiff in the matter complained of were merely the latest example of a scurrilous and salacious series of accusations wholly lacking in any quality of journalism”.[xxxvi]
Damages awarded:
(a) Compensatory and aggravated damages together – $125,000.00.
The Court took into account that the defendant failed to apologise in response to the plaintiff’s notices of concern and instead published a “grossly insulting and public response”.[xxxvii]
Gayed v Abdelmalek [2020] VCC 1814 (30 November 2020)
Date of Decision: 30 November 2020
Court: County Court of Victoria
Publication Media:
The Plaintiff, an elderly churchgoer, sued the Defendant over a series of six posts published by the Defendant.
Categorisation of defamatory material:
The Court held that “the defamatory sting of the post was plainly serious”[xxxviii] and that “the gravity of the posts and the plaintiff’s social standing in his Church and community require a substantial award of damages in order to convince bystanders of the baselessness of the allegations against the plaintiff”.[xxxix]
Damages awarded:
(a) Compensatory damages – $120,000.00.
Trott and Trott v Rajoo [2020] WADC 144
Date of Decision: 13 November 2020
Court: District Court of Western Australia
Publication Media:
The Plaintiffs sued their former neighbour, the Defendant, over emails the Defendant sent to a police inspect and a school principal.
Categorisation of defamatory material:
The Court held that “the allegations touched directly upon the integrity of each of the plaintiffs and the core attributes of their personality”[xl] and that “it is difficult to comprehend a more serious allegation”[xli] than the imputation arising from the defamatory material.
Damages awarded:
(a) Each Plaintiff was awarded $30,000.00 ($20,000.00 in compensatory damages; and $10,000.00 in aggravated damages)
Gair and Turland v Greenwood [2020] NSWDC 586
Date of Decision: 1 October 2020
Court: District Court of New South Wales
Publication Media:
The Plaintiffs, a mayor and former deputy major of a NSW local council, sued the Defendant, a resident of the Shire, over a video published on YouTube.
Categorisation of defamatory material:
With respect to Mr Gair and Mr Turland, the Court held that the defamation was “serious in that it struck at the heart of his character and his conduct as an elected politician”.[xlii]
Damages awarded:
(a) Compensatory and aggravated damages together for Mr Gair – $100,000.00 (plus interest of $7,980.00)
The Plaintiffs were entitled to aggravated damages. The factors that the court took into account were that the allegations in the video were known by the Defendant to be untrue; the video contained sensational and emotive language and images designed to ridicule; the Defendant refused to apologise and the video was the start of the defendant’s relentless campaigns against the Plaintiffs.[xliii]
Webster v Brewster (No. 3) [2020] FCA 1343
Date of Decision: 22 September 2020
Court: Federal Court of Australia
Publication Media:
The Plaintiff, a Nationals Member of Parliament, sued the Respondent over a series of Facebook posts and videos made in April and May 2020.
Categorisation of defamatory material:
The Court held that “the need for vindication of reputation is the most substantial consideration in damages assessed”.[xliv] The award of damages for Zoe Support recognised “that the entity may not be awarded damages for hurt feelings” but reflects Justice Gleeson’s conclusion “as to the sum required to convince a bystander of the baselessness of Ms Brewer’s terrible charges”.[xlv]
With respect to Dr Philip Webster, the damages reflect the “need to vindicate his long standing reputation as a medical practitioner”.[xlvi]
The higher amount of damages awarded to Dr Anne Webster reflects “the number of publications making imputations against her, and the viciousness of Ms Brewer’s conduct directed towards her”.[xlvii]
With respect to Dr Philip Webster and Dr Anne Webster’s, the award of damages was also intended to “provide consolation for the undoubted hurt inflicted by Ms Brewer’s defamatory conduct”.[xlviii]
Damages Awarded:
(a) Compensatory damages (including aggravated damages) for Dr Anne Webster – $350,000.00
(b) Compensatory damages (including aggravated damages) for Dr Philip Webster – $225,000.00
(c) Compensatory damages (including aggravated damages) for Zoe Support – $300,000.00
Wells v Cossari [2020] VCC 988
Date of Decision: 23 July 2020
Court: County Court of Victoria
Publication Media:
The Plaintiff, a Victorian Liberal Member for Rowville, commenced proceedings against the Defendant, for statements made about him on Facebook during the November 2018 state election campaign.
Categorisation of defamatory material:
In deciding the amount of damages to award, the Court held that “[t]he final and perhaps most significant contrast between this case and Mirabella’s case [Mirabella v Price & Anor [2018] VCC 650]” is that no apology had been forthcoming from Mr Cossari and that Mr Cossari had instead pressed a counterclaim.[xlix] The Court noted that the award of damages represented a smaller award than was made in Mirabella v Price & Anor [2018] VCC 650 because the publication was “much less extensive” and the incident was brought to the attention of the mainstream media only as a result of the Plaintiff’s own legal advisors.[l]
Further, the Court found that the defendant’s defence of the proceeding was not bona fide and thus the defendant’s persistence in the allegation of falsehood and refusal to tender an apology “must be regarded as indicative of malice”.[li]
Damages awarded:
(a) Compensatory Damages – $120,000.00
(b) Aggravated Damages – $20,000.00
Nationwide News Pty Limited v Rush [2020] FCFCA 115 (Appeal from Rush v Nationwide News Pty Limited (No 7) [2019] FCA 496)
Date of Decision: 2 July 2020
Court: Full Court of the Federal Court of Australia
Publication Media:
The Applicant, Mr Rush, sued the Respondent, Nationwide News in the Federal Court of Australia for allegedly defamatory publications in print and online.
The extent of the publication was significant. The articles were published in the Daily Telegraph, the Advertiser, the Courier Mail, and the Gold Coast Bulletin.
The Federal Court awarded Mr Rush damages for defamation of almost $2.9million (including compensatory and aggravated damages of $850,000)
Nationwide News appealed to the Full Federal Court.
Categorisation of defamatory material:
The Full Federal Court confirmed the categorisation of the imputations as being “extremely serious”[lii] and described the harm caused to Mr Rush’s reputation as being “the result of a sensationalised tabloid crusade by the appellants with aggravating features of a most serious kind”.[liii]
The Full Court held that “[t]he award of damages…had to take account of the subjective response of Mr Rush to the publications, which left him devastated and distressed and consumed by grief. The award had to take account of the appellants’ aggravation of the harm that they had caused to Mr Rush. The potency of the imputations was a matter to be taken into account in giving effect to the object of vindication having regard to the worldwide damage that the appellants had caused to Mr Rush’s reputation.”[liv]
Damages awarded:
(a) Compensatory and aggravated damages – $850,000.00
(b) Past and future economic loss – $1.9 million
(c) Interest
Asbog Veterinary Services Pty Ltd & Anor v Barlow [2020] QDC 112
Date of Decision: 11 June 2020
Court: District Court of Queensland
Publication Media:
The Defendant made seven publications across “True Local”, a consumer guide webpage, Facebook and Twitter. The posts were removed after the receipt of a concerns notice. The other publications were removed after the proceedings were issued. The posts had a broad circulation on the different on-line forums. The posts had been shared at least 473 times on Facebook[lv].
Categorisation of defamatory material:
The court in awarding damages considered that there were aggravating circumstances, however the publication whilst accusing both the company and vet of unfair business practices “did not accuse them of dishonesty or criminal conduct”[lvi]. The court accepted that the posts on social media had been removed and were of a transitory nature.
Damages awarded:
There was no evidence of actual loss by the company before the court[lvii]. The court noted that in the case of a company, in the absence of actual injury to reputation by way of loss of goodwill or clients, the resulting award of damages may be moderate or nominal[lviii].
(a) Compensatory Damages to Asbog Veterinary Services – $10,000.00
(b) Compensatory Damages to Mr O’Grady (vet) – $15,000.00
(c) Interest was awarded in the sum of $1,697.72 and $2,546.57 respectively
Smith v Jones [2020] NSWDC 262
Date of Decision: 28 May 2020
Court: District Court of New South Wales
Publication Media:
The Plaintiff, a Sutherland Shire solicitor, commenced proceedings against the Defendant for reviews published on Yelp and Google.
Categorisation of defamatory material:
The defamatory material was categorised by the Court in the following way, “Each of the pleaded and established imputations is serious and strikes at the character, professionalism, honesty and competency of the plaintiff as a solicitor in practice”.”[lix] District Court Judge Scotting was satisfied that the publications were “published to the world at large and probably read by at least a few thousand people”[lx] and would be “read by people searching the internet to engage a solicitor in the Sutherland and/or Wollongong area and that some of those people chose not to engage the plaintiff”[lxi] as a result of the publications.
The Plaintiff was entitled to aggravated damages on the basis that the Defendant knew the contents of the publications were untrue. The publications formed part of a pattern of conduct by the Defendant which sought to “harass the Plaintiff because he was acting as a solicitor for the clients”.[lxii]
Damages awarded:
(a) Compensatory and aggravated damages together – $80,000.00
(b) Interest was awarded in the sum of $4,821.00
Goldberg v Voigt [2020] NSWDC 174
Date of Decision: 7 May 2020
Court: District Court of New South Wales
Publication Media:
The Defendant published on the Rose Bay Community – Original and Official Group Facebook Page.
Categorisation of defamatory material:
The defamatory material was categorised by the Court in the following way, “In this matter, although the imputations conveyed are undeniably serious, the dissemination is considerably limited and no evidence is provided to indicate that the defamation was ever spread outside of the Rose Bay area. In addition, the medium of the post, being a Facebook publication, carries far less weight when compared to other forms of publication. Finally, I accept the defendant’s submission that a Facebook post of this nature would be transitory, especially in circumstances where the post has long been deleted. For these reasons, I find the present matter is at the lower end of the scale.” [lxiii]
Damages awarded:
(a) Compensatory and aggravated damages together – $35,000.00
Defteros v Google LLC [2020] VSC 219
Date of Decision: 30 April 2020
Court: Victorian Supreme Court
Publication Media:
The Court held that Google by including a hyperlink in the Google search results to the Underworld article published on the Age newspaper website, had published the article during the period 11 February 2016 to 150 people. The court found that the Underworld article conveyed the imputation that the Plaintiff had crossed the line from professional lawyer.. to confidant and friend of, criminal elements[lxiv].
Categorisation of defamatory material:
The Court was of the view that the defamatory imputations conveyed by the Underworld article to be at the “less serious end of the spectrum”, because the Plaintiff had acknowledged a friendship with one long term criminal client and because the Judge was “satisfied that he had a settled reputation as a lawyer who did not befriend his clients.”[lxv]
Damages awarded:
Compensatory damage – $40,000.00
Darwin v Norman [2020] NSWSC 357
Date of Decision: 8 April 2020
Court: New South Wales Supreme Court
Publication Media:
The Plaintiff successfully complained about defamatory imputations arising from blog posts and an article the Defendant wrote for the Nimbin Times.
Categorisation of defamatory material:
The defamatory material was categorised by the Court in the following way, “I have no hesitation in inferring that each of the plaintiffs has sustained significant damage to reputation from the publication of these defamatory matters, particularly as a result of the imputations upon their honesty in business.” [lxvi]
Damages awarded:
In determining the amount of damages, the Court noted that the publications on the internet have remained visible to the public for an extended period and the evidence supported the inference that the Plaintiff’s family, friends and prospective employers had seen the material.[lxvii]
The Plaintiffs were entitled to aggravated damages on the basis that the Defendant was reckless in publishing the publications and unjustifiably maintained the defence of truth.[lxviii]
(a) Each plaintiff was awarded compensatory damages (including aggravated damages) of $200,000.00
Brose v Baluskas & Ors (No 6) [2020] QDC 15
Date of Decision: 28 February 2020
Court: Queensland District Court
Publication Media:
The Plaintiff, Tamborine Mountain High School Principal, sued members of the Tamborine Mountain community over comments published on a private Facebook page and an online petition.
Categorisation of defamatory material:
Although the Plaintiff was able to demonstrate that she suffered some damage to her reputation, the publication was found not to have substantially damage her reputation. The evidence established that the Plaintiff was reinstated as Principal of the School after the posts were published and the Court noted that “[i]t follows that the negative online posts did not affect her ability to re-establish her role” and that “there was no cogent evidence that the plaintiff was shunned by parents or teachers or those in the broader community at all – let alone as a result of the online negative posts”.[lxix]
The award of damages took into account the need to vindicate the Plaintiff’s reputation as a result of subsequent media publications which contained either full or partial republications of all of the posts.[lxx] Further, the Plaintiff suffered some hurt and distress as a result of the posts but not to the extent alleged.[lxxi] The damages were further limited as it was “not possible to isolate the harm caused to the plaintiff’s reputation and her hurt and distress given the myriad of factors going on in her life”.[lxxii]
Damages awarded:
The two Defendants were required to pay compensatory damages of $3,000.00 each.
The Plaintiff received settlement compensations from other defendants in the proceeding totalling $182,500.00.[lxxiii]
Cheng v Lok [2020] SASC 14
Date of Decision: 6 February 2020
Court: Supreme Court of South Australia
Publication Media:
The Plaintiff, a well-respected Adelaide lawyer, commenced proceedings against the Defendant after she published a review in English and Mandarin on Google My Business. The Plaintiff had never met or represented the Defendant.
Categorisation of defamatory material:
The defamatory material was categorised by the Court in the following way, “The defamatory publications hit at the heart of the plaintiff’s business and reputation. The imputations are grave; publication occurred over a period of at least six months and the only mitigation was that undertaken by the plaintiff himself. Separate to the damage to the goodwill of the plaintiff’s business is the damage to his own reputation. I have no doubt that significant damage was caused by the publication, and any award of damages must, in the words of Blue J, “be sufficient to signal the public vindication of [his] reputation.” [lxxiv]
Damages awarded:
In total, the sum of $750,000.00 was awarded in damages, comprising of:
(a) Past economic loss – $300,000.00
(b) Future economic loss – $100,000.00
(c) Loss of Goodwill – $150,000.00
(d) Compensatory damages – $100,000.00
(e) Aggravated damages – $100,000.00
Poniatowska v Channel Seven Sydney Pty Ltd (No. 2) [2020] SASCFC 5; [2019] SASCFC 111
Date of Decision: 29 January 2020; 27 September 2019
Court: Full Court of South Australian Supreme Court
Publication Media:
The Defendant was successfully sued by the Plaintiff for publishing defamatory allegations about the Plaintiff in their television program Today Tonight, which was uploaded onto the Today Tonight webpage.
Categorisation of defamatory material:
The Full Court held that the imputations, objectively viewed “were likely to cause substantial distress” and in Ms Poniatowska’s case they exacerbated a pre-existing medical condition.[lxxv]
Damages for non-economic loss were assessed on the basis that the program was broadcast in New South Wales and Western Australia,[lxxvi] and taking into account that Ms Poniatowska lived, studied and worked in South Australia.[lxxvii]
The Full Court found that the evidence in relation to the internet downloads of the program were “unfortunately complex”.[lxxviii] In the circumstances, the Full Court proceeded on the premise that the story was viewed on approximately 100 occasions.[lxxix] As such, although the internet story transcended state borders, “the number of South Australians before whom Ms Poniatowska’s standing suffered is relatively confined”.[lxxx]
Nonetheless, the amount of damages had to be “sufficient to vindicate Ms Poniatowska’s reputation in the face of serious allegations”.[lxxxi]
Damages awarded:
(a) Economic loss – $80,000.00
(b) Non-economic loss – $200,000.00
Jensen v Nationwide News Pty Ltd (No. 13) [2019] WASC 451
Date of Decision: 20 December 2019
Court: Supreme Court of Western Australia
Publication Media:
The Plaintiff successfully sued the Defendant over defamatory imputations arising from two articles published in print and online.
Categorisation of defamatory material:
The Court held that the allegations were serious, but that “the nature of the defamation in this case was not as serious as some of the far more serious imputations in a number of the decided cases referred to by Dr Jensen as comparable awards..” [lxxxii]
Damages awarded:
(a) Compensatory and aggravated damages together – $325,000.00 (interest awarded at a rate of 6% per annum)
Jane Doe v Shane Dowling [2019] NSWSC 1222
Date of Decision: 20 September 2019
Court: Supreme Court of New South Wales
Publication Media:
The Defendant had published allegedly defamatory articles about the four unnamed Plaintiffs on his website Kangaroo Court of Australia.
Categorisation of defamatory material:
Although the Plaintiffs did not provide affidavit or oral evidence on damages, the Court inferred that the publication of the articles “would necessarily have caused damage to reputation and hurt to feelings”[lxxxiii]
The Court held that “while the plaintiffs’ reticence to give evidence is understandable and does not support an inference against their case on damages, it does leave their case in a bare state”.[lxxxiv] There was no evidence of the number of people who viewed the articles and there was no evidence the mainstream media republished the articles. The interlocutory injunction granted in an earlier proceeding was deemed effective at discouraging republication and that it would have minimised the damage to reputation.[lxxxv]
Despite the above, the Court found that “[a]ny woman in the position of these plaintiffs would feel demeaned and lowered in the esteem of everyone who knows her by such assertions and would experience anger toward the perpetrator”.[lxxxvi]
Each Plaintiff was entitled to aggravated damages on the basis that the Defendant acted improperly and without bona fides, and in particular the articles were published “without the slightest attempt at verification and thereafter failing to retract or apologise”.[lxxxvii] The Defendant also maintained publication of the articles in defiance of the interlocutory injunctions and published the names of the Plaintiffs in breach of court orders. [lxxxviii]
Damages awarded:
In addition to each Plaintiff being awarded a permanent prohibitory injunction, each Plaintiff was awarded $150,000.00 (including aggravated damages).
John O’Neill v Fairfax Media Publications Pty Ltd (No 2) [2019] NSWSC 655
Date of Decision: 11 July 2019
Court: Supreme Court of New South Wales
Publication Media:
Following a boxing match between Danny Green and Anthony Mundine, the Plaintiff, a doctor, sued the Defendant for an article published in print and online.
Categorisation of defamatory material:
In accepting the imputations were defamatory, the Court found that “Had Dr O’Neill been named in the matters complained of, I would accept that an amount at the top of the range should be awarded. I am nevertheless satisfied that this was a very serious defamation. The damage clearly spread among Dr O’Neill’s colleagues and friends potentially damaging his reputation irreparably in some quarters. ” [lxxxix]
Damages awarded:
(a) Compensatory damages – $350,000.00
(b) Aggravated damages – $35,000.00
This article is an update of the article entitled Damages for On-line Defamation July 2019 to September 2020, authored by Katarina Klaric. The contribution of Peter Divitcos in researching, compiling and authoring the list of cases in this article (for July 2019 to August 2021) is acknowledged. The contribution and assistance of Rochina Iannella in updating and editing this article is also acknowledged.
This update is not intended to be a substitute for obtaining legal advice.
© Stephens Lawyers & Consultants. March 2022.
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
[i] Rothe v Scott (No.4) [2016] NSWDC 160. Gibson DCJ at para. 140.
[ii] Fairfax Media Publications Pty Ltd v. Voller [2021]HCA 27
[iii] Rush v Nationwide News Pty Limited (No 7) [2019] FCA 496
[iv] Nationwide News v Rush [2020] FCFCA 115
[v] 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) and No 132 of 26.6.2020, p 3045 (amount declared: $421,000); and No. S 333 of 25.6.2021, p 1 (amount declared: $432,500).
[vi] Thunder Studios Inc (California) v Kazal (No 12) [2022] FCA 110 [311]
[vii] Ibid. [332]
[viii][viii] Ibid. [336]
[ix] Ibid. [231]
[x] Ibid. [348]
[xi] Ibid. [355]
[xii] Ibid. [353]
[xiii] Ibid. [360] -[361]
[xiv] Ibid. [340]
[xv] Turtur AO v Connor [2021] SADC 127, [13]
[xvi] Ibid. [14]
[xvii] Nettle v Cruse [2021] FCA 935, [15].
[xviii] Ibid, [2].
[xix] Dean V Puleio [2021] VCC 848, [62].
[xx] Ibid.
[xxi] Ibid, [52].
[xxii] BeautyFULL CMC Pty Ltd & Ors v Hayes [2021] QDC 111, [96].
[xxiii] Ibid, [119] – [120].
[xxiv] Kumar & Anor v Raghupathy [2021] VCC 532, [31].
[xxv] Ibid, [12].
[xxvi] Murphy v Nationwide News Pty Ltd [2021] FCA 381, [97].
[xxvii] Ibid, [98].
[xxviii] Ibid, [99].
[xxix] Lee & Ors v Sheen & Anor [2021] QDC 18, [178] – [179].
[xxx] Parke v Zivkovic & Ors [2021] VCC 41, [87].
[xxxi] Ibid, [120].
[xxxii] Ibid, [123].
[xxxiii] Chau v Australian Broadcasting Corporation (No 3) [2021] FCA 44, [184]
[xxxiv] Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15, [259].
[xxxv] McEwan v McDaniel [2020] QDC 321,[59].
[xxxvi] Geyer v Ghosn [2020] NSWDC 744, [78].
[xxxvii] Ibid [91].
[xxxviii] Gayed v Abdelmalek [2020] VCC 1814, [75].
[xxxix] Ibid [94].
[xl] Trott v Rajoo [2020] WADC 144, [66].
[xli] Ibid [67].
[xlii] Gair and Turland v Greenwood [2020] NSWDC 586, [72] and [78].
[xliii] Ibid [74] and [80].
[xliv] [2020] FCA 1343 [89].
[xlv] Ibid.
[xlvi] Ibid.
[xlvii] Ibid [92].
[xlviii] Ibid [91].
[xlix] [2020] VCC 988 [149].
[l] Ibid [151].
[li] Ibid [153].
[lii] [2020] FCFCA 115 [486].
[liii] [2020] FCFCA 115 [487].
[liv] [2020] FCFCA 115 [489].
[lv] [2020] QDC 112 [201]
[lvi] [2020]QDC 112 [200].
[lvii] Ibid [197].
[lviii] Ibid [170].
[lix] [2020] NSWDC 262 [47].
[lx] Ibid [57].
[lxi] Ibid [58].
[lxii] Ibid [60] – [61].
[lxiii] [2020] NSWDC 174 [58].
[lxiv] [2020]VSC 219 [290]
[lxv] [2020] VSC 219 [313]
[lxvi] [2020] NSWSC 357 [162].
[lxvii] Ibid.
[lxviii] Ibid [165].
[lxix] [2020] QDC 15 [361].
[lxx] Ibid [413].
[lxxi] Ibid [453].
[lxxii] Ibid [454].
[lxxiii] Ibid [467].
[lxxiv] [2020] SASC 14 [57].
[lxxv] [2020] SASCFC 5 [117].
[lxxvi] Ibid [93].
[lxxvii] Ibid [118].
[lxxviii] Ibid [96].
[lxxix] Ibid [103].
[lxxx] Ibid [118].
[lxxxi] Ibid [119].
[lxxxii] [2019] WASC 451 [559].
[lxxxiii] [2019] NSWSC 1222 [60].
[lxxxiv] Ibid [63].
[lxxxv] Ibid.
[lxxxvi] Ibid [66].
[lxxxvii] Ibid [67].
[lxxxviii] Ibid [68].
[lxxxix] [2019] NSWSC 655 [241].