Stephens Lawyers & Consultants
Courts are continuing to award significant damages for on-line defamatory publications. The damages awards in recent cases have ranged from $30,000.00 to $390,000.
In this update, Stephens Lawyers & Consultants reviews the damages awarded in defamation cases during the period 5 August 2023 to 30 June 2024 involving on-line publications, and provides guidance on damages awards and the factors taken into account by Courts in awarding damages. These factors include:
- the duration of the publication;
- the extent of the publication including the number of unique page on-line views of the defamatory material;
- grapevine effect of the publication;
- reputational harm and financial losses resulting from defamatory publication.
[For Stephens Lawyers & Consultants’ review of damages awarded in on-line defamation cases during the period December 2022 to 4 August 2023 see HERE ]
Selected Recent Cases – 5 August 2023 to 30 June 2024
Edwards v Nine Network Australia Pty Limited (No 5) [2024] FCA 422
Date of Decision: 26 April, 2024
Court: Federal Court of Australia
Publication Media: The claim by the Applicant, a barrister, concerned allegedly defamatory imputations conveyed by a television program called “A Current Affair”. This included two broadcast publications, both made during prime time by a major network and on Facebook, as well as two accompanying articles about the dispute published on the internet. Each of the broadcasts were viewed by many people (just over 1 million people in the case of the 1st television broadcast publication), while the associated articles were also viewed by a relatively large number of people.[i]
Categorisation of Defamatory Material: The imputations concerned the ownership of an Instagram famous cavoodle dog named Oscar and included allegations of theft and financial exploitation of Oscar, as well as alleged delay of the related court proceedings. The Honourable Justice Wigney found that:-
- Most of the imputations were conveyed;
- While the nature and content of the defamatory imputations which were conveyed by the publications, had the capacity to cause serious damage to the Applicant, both personally and professionally, the evidence did not go so far as to establish that the publication in fact had that effect;
- Rather, in this case, Justice Wigney accepted that the publications caused some damage to the Applicant’s reputation, but that the damage caused was not serious.[ii]
Damages Awarded:
- Damages in the sum of $150,000 (including aggravated damages);
On the Applicant’s claim for prejudgement interest[iii] and injunctive relief[iv], Justice Wigney agreed to hear further submissions from the parties but encouraged the parties “to confer and endeavour to reach an agreement” on these matters.
FJ (pseudonym initials) v Siglin [No 2] [2024] WADC 13
Date of Decision: 4 March 2024
Court: District Court of Western Australia (In Civil)
Publication Media: Involved a publication on Facebook on 17 March 2021 by the defendant (the ‘Facebook Post’), which falsely named the plaintiff as the suspect charged with the fatal high profile motorcycle gang shooting in Perth and included 3 clear photographs of the plaintiff which had been ‘lifted’ from the plaintiff’s own Facebook page. The name of the person who had been arrested for the shooting had been suppressed by the courts. Upon being made aware of the Facebook Post by a friend, the plaintiff contacted the police. The defendant removed the Facebook Post by the morning of 19 March 2021 after being contacted by the police. The defendant’s Facebook page had 1,300 followers, and the Facebook Post appeared in the defendant’s publicly accessible Facebook timeline, and to the world at large.[v] Evidence was also accepted of the ‘grapevine effect’, and that the likely impact of the publication, and the initial notoriety of the fatal shooting, would have spread it beyond those people who saw the Facebook post before it was taken down.[vi]
Categorisation of Defamatory Material: District Court Judge Gillan noted that defamatory claims “of ‘grave crimes’ are at the highest end of the scale of serious defamations”[vii]. In this case, His Honour found that the publication conveyed false and “very serious”[viii] imputations, (including that the false and defamatory imputation that the plaintiff was guilty of the crime), and that this was a publication “where the potential ramifications for that innocent person [the plaintiff] could have been very dangerous”.[ix] His Honour explained that “Clearly, a murder for hire is far more serious and unusual than a murder based on passion combined with opportunity which is otherwise not premeditated.”[x] The plaintiff’s evidence of the effect the publication had on him was accepted; it included that the plaintiff left his home, sold his belongings, and substantially withdrew from his usual life.
Damages Awarded:
- $250,000 damages, including aggravated damages,
- Interest from 21 May 2021 in the sum of $42,041.10
Matters taken into account in awarding aggravated damages included:-
- The defendant ignored the plaintiff’s Concerns Notice;
- The defendant’s failure to offer an apology to the plaintiff;
- The defendant’s general disregard for the consequences to the plaintiff.[xi]
Greiss v Seven Network (Operations) Limited (No 2) [2024] FCA 98
Date of Decision: 20 February, 2024
Court: Federal Court of Australia
Publication Media: Involved the following, which were published on 6 May 2021:-
- An article appearing on the Respondent’s website;
- A Facebook post on the Respondent’s Facebook account; and
- A tweet posted by a journalist employed by the Respondent as a court reporter.
Each of these publications contained a report of, and comment on, the conduct of the Applicant towards the alleged rape victim on that same day, outside a courthouse in Newcastle, giving rise to imputations which the Applicant argued were false and defamatory. The Respondent admitted that the pleaded imputations were conveyed but sought to rely on defences of justification (truth), honest opinion and contextual truth. The Respondents also argued that even if their defences were unsuccessful, no damages should be awarded.[xii]
Categorisation of Defamatory Material: While Justice Katzmann determined that the libel involved in one of the alleged matters was serious, the substantial truth of the imputation, as well as the Applicant’s hostility towards the victim and his “generally disgraceful behaviour” in a public street afterwards, warranted a nominal sum for the damage to the Applicant’s reputation and as vindication.[xiii] The Respondent’s argument that the Applicant should receive no damages was rejected by Justice Katzmann because His Honour accepted the Applicant’s (unchallenged) evidence as to his hurt feelings.[xiv]
Damages Awarded:
- Damages in the sum of $35,000 – for non-economic loss; and
- Pre-judgement interest in the sum of $2,940.
The Applicant’s claim for aggravated damages was considered, but Justice Katzmann was not persuaded by the evidence provided that the Respondent’s conduct was improper, unjustifiable, or lacking in bona fides.
Amrish Saxena v Manjot Singh & Aashu Mahna & Rahul Mahna [2024] VCC 2
Date of Decision: 24 January 2024
Court: County Court of Victoria at Melbourne Common Law Division Defamation List
Publication Media: The Plaintiff, a general practitioner (GP), commenced defamation proceedings against the First, Second and Third Defendants in respect of 2 reviews posted between 22 and 24 June 2021 on the Plaintiff’s Google My Business page:-
- A review posted by and in the name of the First Defendant – accompanied by a one-star rating; and
- A second review in the name of the 2nd Defendant but allegedly uploaded by the First and Second Defendants – accompanied by a one-star rating.
The First Defendant had only consulted the Plaintiff once, in August 2020. The Third Defendant had consulted the Plaintiff at various times between October 2019 and 21 June 2021, for various ailments and conditions. The Second Defendant had never been a patient of the Plaintiff.
The reviews were taken down on 6 August 2021 in response to a Concerns Notice issued by the Plaintiff’s lawyers.
The Plaintiff’s evidence included that there had been 725 ‘hits’ to the plaintiff’s Google My Business page between the time the reviews were posted and 30 June 2021[xv], and that the Defendants’ 2 reviews were the two most recent reviews on the plaintiff’s Google My Business page from the time they were posted until at least 16 July 2021.[xvi]
Justice Myers found that the 2 reviews were published “to the public at large”[xvii] and further deduced from the provided evidence that the 2 reviews were “likely read by a few hundred people during the period from posting to 30 June 2021”[xviii]
Categorisation of Defamatory Material: Her Honour Justice Myers held that the 2 reviews conveyed the imputations as pleaded (including of improper treatment and incompetence) and that the imputations were false and defamatory of the Plaintiff. Her Honour noted that “These were serious imputations to level at a medical practitioner.”[xix] A number of defences were considered, including defence of justification[xx], triviality[xxi], the common law defence of qualified privilege[xxii], the defence of honest opinion[xxiii], and the defence of fair comment[xxiv], all of which Her Honour held were not established in these circumstances.
Damages Awarded:
- The First Defendant to pay the Plaintiff damages in the sum of $30,000 (including aggravated damages due to the finding that the Defendants were motivated by malice[xxv]); and
- The Second and Third Defendants to pay the Plaintiff damages in the sum of $40,000 (including aggravated damages).
Courtney v Maguire: Maguire v Courtney [2023] VCC 2280
Date of Decision: 18 December, 2023
Court: County Court of Victoria at Melbourne Common Law Division – Defamation List
Publication Media: Both proceedings (which were heard together before a judge and jury in October 2023) arose from comments posted during a “back and forth’[xxvi] between Mr Courtney and Mr Maguire on two Facebook Pages operated by Mr Maguire (the ‘Facebook Pages’). Mr Courtney, a retired businessman, successfully sued Mr Maguire in respect of 3 defamatory posts made by Mr Maguire in September 2020 on the Facebook Pages (‘Mr Maguire’s Posts’). Mr Maguire unsuccessfully sued Mr Courtney in respect of 4 posts made by Mr Courtney in July 2020 on the Facebook Pages. Evidence of the extent of publication of Mr Maguire’s Posts included the number of followers of the 2 Facebook Pages at the time of publication – being 2,000 for the 1st Facebook Page and 22,000 followers for the 2nd Facebook Page – as well as the large number of interactions and comments made by those followers on Mr Maguire’s Posts. Her Honour Judge Clayton noted that Mr Maguire “had a particularly engaged social media following”.[xxvii]
Categorisation of Defamatory Material: In determining damages payable to Mr Courtney, Her Honour accepted that “the imputations in this case were serious, that they went to the heart of Mr Courtney’s reputation in the community, in his professional life and in the charities in which he is involved”.[xxviii]
Damages Awarded: Mr Maguire to pay to Mr Courtney damages in the sum of $125,000 (including aggravated damages as a result of a finding of malice). Mr Maguire’s claims in defamation against Mr Courtney were unsuccessful.
Spencer v McKay [2023] VCC 2238
Date of Decision: 18 December, 2023
Court: In the County Court of Victoria at Melbourne Common Law Division – Defamation List
Publication Media: The Defendant was the founder of a religious organisation to which Plaintiff’s daughter belonged. The Plaintiff initiated proceedings against the Defendant in respect of a publication of a video on YouTube by the Defendant’s religious organisation which conveyed an allegedly false and defamatory imputation about the Plaintiff. The Defendant admitted to writing the script for the video and authorising the uploading of the video onto YouTube. The Defendant subsequently pixilated the Plaintiff’s first name (‘Renee’) in the video, and for the period between 1 August 2022 and 26 October 2022, ‘hid’ the video.[xxix]
Categorisation of Defamatory Material: Her Honour accepted that allegations of this nature, in this context, would be hurtful and damaging – and in this case, they were presented as fact and “likely to be believed by the people of greatest importance to Ms Spencer – her daughter, and her daughter’s husband and friends.”[xxx] Justice Clayton also found that the Defendant aggravated the damage done to the Plaintiff by arguing a truth defence, and on an honest opinion defence, in circumstances where he did not believe in the truth of the allegation. [xxxi]
However, Her Honour was not satisfied that members of the general public would know who the “Renee” referred to in the video was and that:-
- Even though the evidence showed, as at August 2023, the video had 4,503 views and 240 likes, the publication “was limited, in that only a hundred or so people were likely to identify Plaintiff”[xxxii]; and
- While the defamatory allegation caused harm to the Plaintiff’s reputation within a particular religious community (the Jesus Christians), it was “unlikely that her reputation would be damaged more broadly, including in her professional life”.[xxxiii]
Damages Awarded: Her Honour Justice Clayton ordered the Defendant to pay damages to the Plaintiff in the sum of $85,000 (including aggravated damages).
Russell v Australian Broadcasting Corporation (No 3) [2023] FCA 1223
Date of Decision: 16 October 2023
Court: Federal Court of Australia
Publication Media: The Applicant, a former Major and Commando Officer within the Special Operations Command of the Australian Defence Force, commenced defamation proceedings against the public broadcaster (ABC) and two journalists in respect of 4 publications (including an online article, an online linked article and a television broadcast), which allegedly gave rise to false and defamatory imputations concerning the conduct of the Applicant and his platoon in Afghanistan.
Categorisation of Defamatory Material: His Honour Justice Lee determined the defamatory imputations conveyed by the article(s) to be serious, while also finding “the Television Broadcast, in its brevity, to convey serious defamatory imputations”[xxxiv] The extent of publication was found to be significant, with evidence showing that during the relevant period there were over 87,000 unique page views of the online article, over 2,500 unique click-through page views of the linked article and a total national audience of approximately 194,072 people for the television broadcast (including via the ABC’s online streaming service, ABC iView).[xxxv]
Damages Awarded: The Respondent ordered to pay the Applicant compensatory damages in the amount of $390,000 plus interest at the rate of 3% per annum.
Read v Gitman [2023] NSWDC 330
Date of Decision: 24 August, 2023
Court: District Court of New South Wales
Publication Media: The Plaintiff (a retired, distinguished physics lecturer) was the chair, secretary and treasurer of the owners committee of a small apartment block (‘Apartment Block’), while the Defendant was the strata manager of the Apartment Block. The Plaintiff’s mother owned a unit in that Apartment Block, while the Plaintiff lived elsewhere but nearby. The Plaintiff initiated defamation proceedings against the Defendant in respect of allegedly false and defamatory imputations (including false allegations of lying and general incompetence) arising from 3 emails published by the Defendant in 2020 to owners, a tenant and unit managers, concerning the Plaintiff’s conduct of strata matters. Proceedings were initiated after the Plaintiff’s 2 requests for an apology remained unanswered.[xxxvi]
Categorisation of Defamatory Material: His Honour Justice Gibson acknowledged the Plaintiff had shown that she was “profoundly affected”[xxxvii] by these events (and continued to be at least until the subsequent auction of her mother’s apartment in the Apartment Block at the end of 2021) – even though His Honour found limited direct evidence of any ongoing reputational damage[xxxviii]. The Defendant argued a defence of qualified privilege on the basis that the Defendant’s publication of the 3 emails was limited to the unit owners and a tenant of a unit in the Apartment Block, as well as the unit managers (though there was some evidence that some others had read and/or discussed them). However, His Honour found that the Defendant was motivated by malice in sending each of the 3 emails and that this finding defeated the defence of common law qualified privilege in relation to each of the 3 publications.
In particular, on the finding of malice, his Honour noted that:-
- The Defendant was motivated by malice, as knowing the falsity of his allegations, the Defendant sent the three emails complained of for the dominant improper purpose of protecting himself from the consequences of his actions by falsely blaming the Plaintiff for wrongdoings she had not committed; and
- “This was a sustained campaign of multiple accusations in three separate publications.”[xxxix]
Damages Awarded: Justice Gibson ordered the Defendant to pay to the Plaintiff damages in the sum of $35,000 in respect of the first, second, and third matters complained of.
In determining the amount of damages to be paid in this case, His Honour Justice Gibson noted that “substantial allowance must be made for the limited extent of publication, the degree of seriousness of the imputations and the circumstances of publication, namely an owners corporation email about the AGM in circumstances where conduct of this kind is more likely to be expected than not”.[xl]
Disclaimer: This legal update is not intended to be a substitute for obtaining legal advice.
© Stephens Lawyers & Consultants. 6 August, 2024; Authored by Rochina Iannella, Stephens Lawyers & Consultants. The contribution of Katarina Klaric, Stephens Lawyers & Consultants, in authoring the introduction for this article is acknowledged.
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Katarina Klaric
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[i] Edwards v Nine Network Australia Pty Limited (No 5) [2024] FCA 422 at [377] to [381]
[ii] Ibid. at [396]
[iii] Ibid. at [460]
[iv] Ibid. at [462]
[v] FJ (pseudonym initials) v Siglin [No 2] [2024] WADC 13 at [74]
[vi] Ibid. at [133] to [136]
[vii] Ibid. at [151]
[viii] Ibid. at [145]
[ix] Ibid. at [111]
[x] Ibid. at [112]
[xi] Ibid. at [155]
[xii] Greiss v Seven Network (Operations) Limited (No 2) [2024] FCA 98 at [1] and [2]
[xiii] Ibid. at [418]
[xiv] Ibid. at [419]
[xv] Amrish Saxena v Manjot Singh & Aashu Mahna & Rahul Mahna [2024] VCC 2 at [295]
[xvi] Ibid. at [307]
[xvii] Ibid. at [381]
[xviii] Ibid. at [310]. See also [365] to [367] on The extent of publication.
[xix] Ibid. at [364]
[xx] Ibid. at [333] to [358]
[xxi] Ibid. [369] to [363]
[xxii] Ibid. at [381]
[xxiii] Ibid. at [427]
[xxiv] Ibid. at [432] and [433]
[xxv] Ibid. at [470]
[xxvi] Courtney v Maguire: Maguire v Courtney [2023] VCC 2280 at [5]
[xxvii] Ibid. at [48]
[xxviii] Ibid. at [82]
[xxix] Spencer v McKay [20243] VCC 2238 at [333]
[xxx] Ibid. at [42]
[xxxi] Ibid. at [353]
[xxxii] Ibid. at [336]
[xxxiii] Ibid. at [367]
[xxxiv] Russell v Australian Broadcasting Corporation (No 3) [2023] FCA 1223 at [420]
[xxxv] Ibid. at [434] to [437]
[xxxvi] Read v Gitman [2023] NSWDC 330 at [5]
[xxxvii] Ibid. at [316]
[xxxviii] Ibid. at [307]
[xxxix] Ibid. at [273]
[xl] Ibid. at [317]