25 August 2020
Introduction
Individuals and businesses continue to be targets of defamatory statements, and false or disparaging reviews published on social media platforms such as Facebook or Google My Business, which cause significant reputational damage and loss. Where the publisher refuses to take down the offending material, the affected party has no option but to apply to the court for an interlocutory or interim injunction for the removal of the material and a court order to stop further publication. This article reviews recent court decisions where the courts considered applications for interim injunctions based on defamation and/or the tort of injurious falsehood.
The Australian Uniform Defamation Law aims to protect a person’s reputation, while at the same time protecting freedom of speech. The public interest in free speech has resulted in Courts taking a cautious approach before granting an interlocutory injunction in cases of defamation,[i] it is only available in the clearest of cases.[ii]
In Australia, a company cannot take action for defamation if it employs 10 or more full time employees,[iii] its remedy for false and disparaging statements about its goods or business is based on the tort of injurious falsehood. Injurious falsehood occurs where:
(a) A false statement is published of or concerning the plaintiff’s goods or business; and
(b) Publication of that statement is to a third person; and
(c) The defendant acts with malice; and
(d) The Plaintiff proves actual damage suffered as a result of the false statement.[iv]
Historically, although courts have been reluctant to grant injunctions restraining publication in defamation, Courts have been more willing to grant injunctions in injurious falsehood. Gleeson CJ in Palmer Bruyn & Parker Pty Ltd v Parsons held that “the inhibition upon the use of the injunction to restrain further publication of defamatory material does not apply to injurious falsehood“.[v] The rationale for this distinction is that injurious falsehood exists to protect proprietary and commercial interests rather than personal interests.[vi]
However, this distinction has been held to be merely “historical” rather than principled.[vii] Basten JA in Capilano Honey Ltd v Dowling (No 2) found that “there is no good basis for concluding that [free speech concerns] are irrelevant, in the sense that the judge would err in taking them into account, upon an application for an interlocutory injunction to restrain an injurious falsehood“.[viii]
Nonetheless, despite the conflicting opinions, the High Court approach prevails and it has been recognised that “the restraint exercised in the grant of injunctive relief in defamation cases does not apply, at least with the same force, in cases of injurious falsehood“.[ix]
Elements of an interlocutory injunction
Where an interlocutory injunction is sought the court will ask whether:
- there is a serious question to be tried. It is sufficient for the Plaintiff to show, prima facie, a sufficient likelihood of success to justify the preservation of the status quo pending trial. The nature of the rights and the practical consequences likely to flow from the order sought are also considered;[x] and
- the plaintiff is likely to suffer injury for which damages will not be an adequate remedy;[xi] and
- the balance of convenience favours the granting of an injunction.[xii] Whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury to which the defendant would suffer if an injunction were granted.[xiii]
A Court will also consider other relevant discretionary factors arising from the factual material such as delay in making an application for an interlocutory injunction.
Exceptional circumstances when injunctive relief in defamation proceedings may be appropriate
Despite the traditional view of the common law which emphasises the importance of free speech, exceptional circumstances have resulted in the granting of an interlocutory injunction in cases of defamation.
Such circumstances may include:
a) where the defendant continues to make repeated defamatory publications such that the publications have “the flavour of a vendetta” against the plaintiff;[xiv]
b) where it is likely the defendant will publish similar allegations in the future “despite having been afforded an opportunity to defend those allegations and despite those allegations having been found by a court of competent jurisdiction to be unwarranted“.[xv]
c) where it is likely that the defendant will publish similar allegations in the future because of an “irrational view of the truth of the allegation“;[xvi]
d) where a defendant demonstrates “a disinclination to conform to anticipated findings of the court which may verge on disrespect for legal process“;[xvii]
e) “where the vehemence of the language used by the defendant” suggests that they will persist in making defamatory publications unless restrained.[xviii]
Recent Cases
Webster v Brewer (No 2) [2020] FCA 727 [Federal Court of Australia – 19 May 2020]: Defamation claim – interlocutory injunction granted.
The Applicant, Dr. Webster is a member of the Australian Parliament and founder of the charitable foundation Zoe Support, commenced proceedings against Ms Brewer, the Respondent over a number of alleged defamatory posts and videos published on the Respondent’s Facebook account. The Applicant sought an interim injunction for the removal of the posts and videos and to stop further publication.
The court granted an interim injunction, although Ms Brewer resided in New Zealand. The evidence before the court showed that the Respondent had over 7,500 Facebook followers and the publications were widely viewed.[xix] From Dr Webster’s evidence the court drew the inference that the publications were read by residents of Mildura and individuals in the Australian Capital Territory.
The court considered that the alleged defamatory publications were “extremely serious” and “vile” and clearly capable of conveying many of the serious imputations which were alleged.[xx]
Gleeson J accepted that damages would not be an adequate remedy because of the “irremediable harm that [the Applicants] could be expected to suffer as a result of such serious defamations, particularly where they are presently senior, active and apparently well-respected members of their local community of Mildura“.[xxi]
On the question of balance of convenience, Gleeson J did not consider that the Respondent was likely to suffer serious harm if she was prevented from publishing or maintaining the publications, nor would the Respondent suffer any monetary harm as a result of the interlocutory injunction.[xxii] The likely harm to the Applicants strongly favoured the granting of the injunction and there was no evidence that there was any legitimate public interest or concern in relation to the Respondent’s statements. The Respondent had previously failed to comply with an order to remove the publications and there was thus reason to believe that Ms Brewer would publish similar allegations again unless restrained.[xxiii]
The School for Excellence Pty Ltd v Trendy Rhino Pty Ltd [2018] VSC 514 [Supreme Court of Victoria – 6 September 2018]: Defamation claim – interlocutory injunction granted.
The School for Excellence (TSFX) owned the copyright in practice exams which were uploaded to the Facebook Group “VCE DiscussionSpace” run by the defendant, Trendy Rhino, in breach of copyright.[xxiv] Trendy Rhino, provided undertakings to TSFX to permanently remove and destroy the offending TSFX practice exams from all on-line platforms and databases and to refrain from making derogatory, defamatory, unsavoury, untrue or unfavourable comments in relation to TSFX and to keep their discussions with TSFX confidential.[xxv]
Despite these promises, Trendy Rhino created a second Facebook group, “VCE DiscussionSpace Backup” and posted material which TSFX alleged was in breach of the undertakings provided and defamatory of TSFX.[xxvi] The Facebook group was comprised of 11,000 members and the posted material resulted in negative and abusive comments on Facebook by group members and also negative Google reviews. Justice John Dixon described these posts as having a “real flavour of commercial harassment of the plaintiff”.[xxvii]
TSFX alleged that the defamatory posts in their natural and ordinary meaning meant and were understood to mean that TSFX was:
a) sneaky;
b) potentially engaging in conduct that was misleading and deceptive;
c) a bully;
d) engaging in strong-arm tactics;
e) falsely claiming to support students and their wellbeing;
f) driven by ego and improper self-interest.[xxviii]
TSFX sought an interim injunction requiring Trendy Rhino to remove the offending material from Facebook and other on-line sites and to restrain further publication of offending material. The Court granted the injunction having considered principles in High Court in Australian Broadcasting Corporation v O’Neill, as follows:
- Did The School for Excellence Pty Ltd show a prima facie case?
Trendy Rhino conceded that there was a serious question to be tried in relation to defamation and a contractual breach.[xxix] Justice John Dixon noted that “the practice of the courts is to only grant an interlocutory injunction where the judge is satisfied that the publications are plainly defamatory and that a jury verdict to the contrary would be set aside as unreasonable”.[xxx]
In particular, there were reasonable grounds that the defences of qualified privilege and honest opinion had no reasonable prospects of success.[xxxi]
2. Adequacy of damages
Damages were found to be an inadequate remedy. Firstly, the removal of the “VCE DiscussionSpace” Facebook page resulted in Trendy Rhino losing its revenue stream of more than $50,000 per month in advertising fees with one advertising partner terminating its sponsorship agreement and two other advertising partners having ceased paying fees.[xxxii] Secondly, courts usually protect the obligation of confidence by injunction.[xxxiii]
3. Balance of Convenience
Justice John Dixon found that for “the limited purpose of assessing the balance of convenience, the impugned material is plainly defamatory“.[xxxiv] Further, his Honour considered that the “fomenting and provoking conduct” was likely to continue.[xxxv]
Justice John Dixon decided that “publication that causes circumstances of harassment of a plaintiff by third parties…constitutes exceptional circumstances that may warrant injunctive relief“.[xxxvi]
Goldberg v Voigt [2019] NSWDC 691 [New South Wales District Court – 17 October 2019]: Defamation claim – Interlocutory injunction not granted.
Goldberg had an existing claim for defamation against Voigt, when Voigt was involved in another on-line publication which Goldberg alleged was defamatory.
Goldberg applied to the Court for an interim injunction to remove an alleged defamatory post published by Voigt on the Rose Bay Community Original and Official FaceBook Group page. The FaceBook post did not identify Goldberg but included a link to a GoFundMe.com site, which identified Goldberg as the man who was suing Voigt for defamation.[xxxvii] There was only evidence of 5 people clicking on the link and discovering that the person referred to in the FaceBook post was Goldberg[xxxviii].
The court refused to grant the interlocutory injunction, applying the principles in Australian Broadcasting Corporation v O’Neill:
1. Did Goldberg show a prima facie case?
District Court Justice Gibson referred to the New South Wales Court of Appeal decision in Bennette v Cohen [2009] NSWCA 60 where defamatory remarks were published while seeking to raise funds for defamation litigation. In Bennette, the defences of qualified privilege and honest opinion received no support on appeal. As such, Goldberg had a prima facie case.[xxxix]
2. Adequacy of damages
Golberg argued that damages were inadequate because Voigt admitted in her offer to make amends that she had no funds to satisfy an award of damages.[xl] However, Gibson DCJ held that there is no financial threshold a person must pass to prevent an injunction from being made against them.[xli] There was no suggestion that Voigt was bankrupt.[xlii]
3. Balance of Convenience
Although Goldberg argued that Voigt had shown blatant disregard to the fact that legal proceedings were pending, Gibson DCJ held that it was unavoidable for Voigt to mention the litigation without adversely affecting Goldberg. The fact that someone would have to click on the hyperlink to discover Goldberg’s name also convinced Gibson DCJ that the publication did not “fall within the parameters of the sort of publication that this Court would regard as warranting an order for interlocutory relief“.[xliii]
Gibson DCJ stated that there was no evidence of irreversible damage, only five people clicked on the hyperlink, and it was not a mass media publication.[xliv] Goldberg’s application sought to effectively stop Voigt from raising funds and after taking into account the “greater rigor required in defamation cases“, the application for interlocutory injunction was dismissed.
Bruder Expedition Pty Ltd v Tracey Leigh [2019] QDC 116 [Queensland District Court – 12 July 2019] Injurious falsehood claim – interlocutory injunction granted.
Bruder Expeditions applied to the Court for an interlocutory injunction against Ms Leigh for the removal of allegedly false comments she had posted on a FaceBook page entitled “Lemon Caravans and RVs in Australia” about Bruder, its business and products and to restrain further publication of such material.[xlv] Bruder’s claim was based on the tort of injurious falsehood. The FaceBook page had 47,000 members.
The court applied the principles in Australian Broadcasting Corporation v O’Neill in considering whether an interlocutory injunction should be granted in an injurious falsehood case. The court held that the observations in Australian Broadcasting Corporation v O’Neill about the courts taking a cautious approach in granting an injunction in the context of a defamation case, because the public interest in free speech considerations, applied equally in a claim for an injunction to restrain an injurious falsehood[xlvi].
The interlocutory injunction was granted with the three elements in Australian Broadcasting Corporation v O’Neill being established by Bruder:
1. Did Bruder show a prima facie case?
The Court considered each of the elements of the tort of injurious falsehood and was of the view that Bruder had shown that there was a prima facie case for its claim for damages for injurious falsehood.
As to false statements concerning Bruder’s goods or business, Bruder submitted that each of the posts contained false statements, in that:
(a) Bruder’s off-road caravans were described as defective, of poor quality, unsafe, not good value for money and that Bruder refused to assist its customers; and
(b) Bruder engaged in “shameful behaviour”, “dangerous practices” and was part of a group of companies that used its “financial superiority to threaten and silence customers”.[xlvii]
Bruder also submitted that the posts gave rise to the imputations that Bruder was a bully, commences legal proceedings without proper reasons, threatened its customers, was a rogue trader, was unscrupulous and engaged in dishonest and misleading conduct.[xlviii]
The court considered that the falsity of the statement was not something that could be determined during an interlocutory injunction application. The Court observed that the statements made in the posts were broad and considered that there were triable issues.
As to malice on the part of Ms Leigh, the Court was referred to the conduct of Ms Leigh which evidenced that she was aware of the potential impact that the publicity would have on Bruder’s business and potential loss of sales.[xlix]
As to damages to Bruder, there was evidence which suggested some general loss of business could flow from the posts.[l] The Court noted that a potential customer sent a text message to a Director at Bruder stating that he had removed Bruder from his list of entities from whom he may buy because of the Facebook posts by Ms Leigh.
2. Adequacy of damages and the Balance of Convenience
The court took into account the following factors in concluding that the balance of convenience favoured the grant of an injunction:
a) Damage claimed by Bruder was for the loss of sales and damage to its business reputation;[li]
b) Ms Leigh was on a disability pension and admitted to having no assets such that there were good prospects that Bruder would not be able to achieve compensation for any loss;[lii]
c) Public interest in freedom of communication about matters of public or general interest weighs heavily against the grant of an interlocutory injunction;[liii]
d) Ms Leigh intended to keep publishing material;[liv]
e) If the injunction was not granted there was potentially a three-month period before hearing of the matter when Bruder would suffer loss for which it would likely not be compensated;[lv]
f) If an injunction were granted a three-month period before hearing of the matter was a relatively short period when Ms Leigh would not be able to publish material about Bruder and its products.[lvi]
Omega Plumbing Pty Ltd v Harbour Radio Pty Ltd t/as 2GB and 2GB 873 [2019] NSWSC 1576 [News South Wales Supreme Court – 15 November 2019]: Injurious falsehold claim injunction granted.
Omega Plumbing sued Harbour Radio for injurious falsehood claiming damages over broadcasts and articles published on Harbour Radio’s website. Omega Plumbing sought an interlocutory injunction to prevent further publication of statements about the company over-charging its customers for services it provides, charging its customers for services it does not provide and other unethical and dishonest business practices referred to in the publications complained about.[lvii]
The court granted Omega Plumbing the interlocutory injunction. In this case there was no dispute concerning the prima facie case as to the falsity of the publication. The dispute between the parties was concerning whether there was malice on the part of the Defendant in publishing the material. The Court found that on the evidence there was a prima facie case that the publications were made with malice, which could be inferred from the publications.[lviii]
The adequacy of damages was not at issue in the case.
Having found a prima facie case, the court was of the view that the balance of convenience favoured the granting of an injunction. The Court accepted that in considering balance of convenience element for granting an injunction, free speech has to be considered but less so where injurious falsehood is alleged than in defamation claims. The court considered that the Defendants would only be minimally disadvantaged by being prevented from publishing negative comments and allegations concerning Omega Plumbing.[lix]
The form of the injunction granted included exceptions sought by the defendants having regard to the ongoing enquiry by Fair Trading and any negative findings which may be made by Fair Trading against the plaintiff.[lx]
Authored by Peter Divitcos, Lawyer, 25 August 2020 and edited by Katarina Klaric, Principal, Stephens Lawyers & Consultants.
© Copyright August 2020 — Stephens Lawyers & Consultants
Disclaimer: This Article is not intended to replace obtaining legal advice
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[i] Bonnard v Perryman [1891] 2 Ch 269.
[ii] Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 163, 172.
[iii] See e.g. Defamation Act 2005 (Vic), s 9.
[iv] Palmer Bruyn & Parker Pty Ltd v Parsons(2001) 208 CLR 388, 404 [52] (Gummow J), 425 [114] (Kirby J).
[v] (2001) 208 CLR 388, at [58]. See also Omega Plumbing Pty Ltd v Harbour Radio Pty Ltd t/as 2GB and 2GB 873 [2019] NSWSC 1576 at [53].
[vi] Palmer Bruyn & Parker Pty Ltd v Parsons(2001) 208 CLR 388, at [58].
[vii] Capilano Honey Ltd v Dowling (No 2) [2018] NSWCA 217 at [49]. See also Bruder Expedition Pty Ltd v Tracey Leigh [2019] QDC 116 at [24].
[viii] Capilano Honey Ltd v Dowling (No 2) [2018] NSWCA 217 at [53].
[ix] AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395, [39].
[x] Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, [65] (Gummow and Hayne JJ), agreed to by Gleeson CJ and Crennan J at [19].
[xi] Ibid.
[xii] Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, [19] (Gleeson CJ and Crennan J).
[xiii] Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, [65] (Gummow and Hayne JJ), agreed to by Gleeson CJ and Crennan J at [19].
[xiv] RSPCA v Davies [2011] NSWSC 1445 [67]-[77]; Graham v Powell (No 4) [2014] NSWSC 1319, [45]. See also The School for Excellence Pty Ltd v Trendy Rhino Pty Ltd [2018] VSC 514, at [52].
[xv] Ibid.
[xvi] Higgins v Sinclair [2011] NSWSC 163, at [246]. See also The School for Excellence Pty Ltd v Trendy Rhino Pty Ltd [2018] VSC 514, at [52].
[xvii] Ibid.
[xviii] The School for Excellence Pty Ltd v Trendy Rhino Pty Ltd [2018] VSC 514, at [52].
[xix] Webster v Brewer (No 2) [2020] FCA 727m [30] – [31].
[xx] Ibid [12].
[xxi] Ibid [34].
[xxii] Ibid [36].
[xxiii] Ibid [37].
[xxiv] Ibid [5] – [7].
[xxv] Ibid [9] – [13]
[xxvi] Ibid [14].
[xxvii] Ibid [31].
[xxviii] Ibid [28].
[xxix] Ibid [35].
[xxx] Ibid [42].
[xxxi] Ibid [43] – [48].
[xxxii] Ibid [38].
[xxxiii] Ibid [39] – [40].
[xxxiv] Ibid [48].
[xxxv] Ibid [51].
[xxxvi] Ibid [53].
[xxxvii] Ibid [10].
[xxxviii] Ibid [29]
[xxxix] Ibid [16].
[xl] Ibid [27].
[xli] Ibid [28].
[xlii] Ibid [29].
[xliii] Ibid [21].
[xliv] Ibid [29].
[xlv] Bruder Expedition Pty Ltd v Tracey Leigh [2019] QDC 116, [10] – [12].
[xlvi] Ibid [23]-[24]
[xlvii] Ibid [26] and [28].
[xlviii] Ibid [29].
[xlix] Ibid [32].
[l] Ibid [34].
[li] Ibid [37].
[lii] Ibid [38].
[liii] Ibid [40].
[liv] Ibid [41].
[lv] Ibid [42].
[lvi] Ibid [42].
[lvii] Omega Plumbing Pty Ltd v Harbour Radio Pty Ltd t/as 2GB and 2GB 873 [2019] NSWSC 1576 at [11]
[lviii] Ibid [52]-[53]
[lix] Ibid [53]-[55]
[lx] Ibid [54].