Defamation law has historically occupied a position of overwhelming dominance in the vindication of the traditional right to reputation. Nevertheless, liberalisation of this legal framework including through the Defamation Act 2013 has led to a concern that, when analysed from a fundamental rights perspective, “gaps” in the protection provided for natural persons may have emerged. In this new context, there has been a renewed focus on whether data protection may fill the potential lacunae. Data protection law contains a number of important limitations and exceptions and its jurisprudence has been both limited and sometimes confused. Nevertheless, this article argues that its broad purpose and complex structure ensure it will play a significantly augmented role in the future, especially in actions against website operators facilitating the dissemination of information posted by a third party, the publication of opinion, or where either injunctive relief or the correction of inaccurate information is sought (in particular in cases of continuing online disclosure).In Pedavoli v Fairfax Media Publications Pty Ltd  NSWSC 1674 the Supreme Court of New South Wales has awarded $350,000 to a high school teacher wrongly identified by a newspaper as the teacher involved in the allegations of unlawful sexual misconduct with a number of boys in St Aloysius College.
The Court stated
The defamation greatly damaged Ms Pedavoli's impeccable reputation and caused her immense hurt. She is entitled to a large award of damages and to have the court declare to all the world the falsity of that which has been imputed to her by the newspaper.The NSWSC rejected the newspaper's defence of offering to make amends for its mistake, because the newspaper failed to include in its apology the versions of the article posted in social media and in a syndicated news group. The Court stated
The only defence relied upon by the defendants is the statutory defence created by s 18 of the Defamation Act 2005 of failure to accept an offer to make amends.
The defence under s 18 is relatively new and has received little judicial consideration. Its operation must be considered in the context of the objects stated in s 3 of the Defamation Act, which are:
"(a) to enact provisions to promote uniform laws of defamation in Australia, and
(b) to ensure that the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance, and
(c) to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter, and
(d) to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter."
The defence under s 18 serves those objects (particularly the object of promoting speedy and non-litigious methods of resolving disputes) by creating a powerful incentive for defendants to make amends rather than to fight the cause. The making of a reasonable offer has the potential, one way or the other, to stymy the litigious path to vindication of reputation. If the offer is accepted, the plaintiff cannot pursue proceedings in court: s 17. If the offer is rejected then, provided the requirements of s 18 are satisfied, there is a complete defence, notwithstanding the establishment of an otherwise actionable defamation. Whereas a defendant can apologise, in aid of the defence, with impunity (see s 13(4) and s 20 of the Act), a plaintiff who fails to accept a reasonable offer to make amends risks everything.
In the face of that draconian sanction for failure to accept an offer, it is unsurprising that the Act is quite prescriptive as to its content. Section 15 of the Act provides:
"15 Content of offer to make amends
(1) An offer to make amends:
(a) must be in writing, and
(b) must be readily identifiable as an offer to make amends under this Division, and
(c) if the offer is limited to any particular defamatory imputations-must state that the offer is so limited and particularise the imputations to which the offer is limited, and
(d) must include an offer to publish, or join in publishing, a reasonable correction of the matter in question or, if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited, and
(e) if material containing the matter has been given to someone else by the publisher or with the publisher's knowledge-must include an offer to take, or join in taking, reasonable steps to tell the other person that the matter is or may be defamatory of the aggrieved person, and
(f) must include an offer to pay the expenses reasonably incurred by the aggrieved person before the offer was made and the expenses reasonably incurred by the aggrieved person in considering the offer, and
(g) may include any other kind of offer, or particulars of any other action taken by the publisher, to redress the harm sustained by the aggrieved person because of the matter in question, including (but not limited to): (i) an offer to publish, or join in publishing, an apology in relation to the matter in question or, if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited, or (ii) an offer to pay compensation for any economic or non-economic loss of the aggrieved person, or (iii) the particulars of any correction or apology made, or action taken, before the date of the offer.
(2) Without limiting subsection (1)(g)(ii), an offer to pay compensation may comprise or include any one or more of the following:
(a) an offer to pay a stated amount,
(b) an offer to pay an amount to be agreed between the publisher and the aggrieved person,
(c) an offer to pay an amount determined by an arbitrator appointed, or agreed on, by the publisher and the aggrieved person,
The Court went on to conclude -(d) an offer to pay an amount determined by a court."
In accordance with s 18(1) of the Act, the elements of the defence of failure to accept an offer of amends are:
(a) that the publisher made the offer as soon as practicable after becoming aware that the matter was defamatory, and
(b) that, at any time before the trial the publisher was ready and willing, on acceptance of the offer by the plaintiff, to carry out the terms of the offer, and
(c) that in all the circumstances the offer was reasonable.
The third element presents a challenge for the philosophy of space and time. On its face, s 18(1) appears to require proof that the offer was reasonable in all the circumstances as they existed at the time when the offer was made. However, subs (2) provides a list of considerations (some mandatory, some permissible) for determining whether the offer "is" reasonable. The temporal glitch within the section is apparently not accidental. One of the mandatory considerations is "any correction or apology published before any trial". In terms, that provision would require the court, in determining the reasonableness of an offer, to have regard to a correction or apology published after the plea of failure to accept a reasonable offer had been put on. The section thus entails an element of paradox, requiring the court to make a determination as to circumstances at a fixed point in time with mandatory reference to later events.
It was suggested in the plaintiff's written submissions that the offer was not made as soon as practicable in the present case. However, the evidence established that, during part of the relevant period, the defendants were awaiting a response from the plaintiff's solicitor to correspondence in respect of the offer. Whilst I accept that a defendant must act promptly in making an offer of amends, I do not think the period that passed between publication of the matters complained of and the making of the offer detracted from its reasonableness in the present case.
Ms Pedavoli does not dispute that the defendants were ready and willing, upon acceptance of the offer, to carry out its terms.
Whether the offer was reasonable
The real contest is as to whether, in all the circumstances, the offer was reasonable.
Mr Blackburn addressed that issue by asking, rhetorically, how is the defendants' offer unreasonable?
At the risk of boxing at semantic shadows, I think it is preferable to address the question in the terms posed by the statute, which requires the defendants to prove that in all the circumstances the offer was reasonable.
As already noted, s 18(2) guides the determination of that issue. It is appropriate to set out the full text of the subsection:
"(2) In determining whether an offer to make amends is reasonable, a court:
(a) must have regard to any correction or apology published before any trial arising out of the matter in question, including the extent to which the correction or apology is brought to the attention of the audience of the matter in question taking into account: (i) the prominence given to the correction or apology as published in comparison to the prominence given to the matter in question as published, and (ii) the period that elapses between publication of the matter in question and publication of the correction or apology, and
(b) may have regard to: (i) whether the aggrieved person refused to accept an offer that was limited to any particular defamatory imputations because the aggrieved person did not agree with the publisher about the imputations that the matter in question carried, and (ii) any other matter that the court considers relevant."
The starting point is to consider that for which amends are to be made. The reasonableness of an offer will be critically informed by its capacity to address the hurt and harm done by the publication in question, both as to its seriousness and its extent. The extent to which the defendants' apology was brought to the attention of the audience of the matter complained of is a mandatory consideration which must take into account the prominence given to the apology as published in comparison to the prominence given to the matter complained of: s 18(2)(a)(i).
The reach and prominence of the apology
An important consideration in assessing that issue in the present case is that the matter complained of did not name Ms Pedavoli. Rather, it identified her by the inclusion of a wrong description of the teacher concerned. It follows that her reputation was harmed only among those who read the matter complained of and understood it to refer to her. That undoubtedly complicated the task of making amends. On the one hand, a reasonable correction only had to be brought to the attention of a smaller audience than the whole audience to whom the matter complained of was published. However, in order to be reasonable, the correction had to be calculated in some way to attract the attention of that smaller audience.
Newspaper editors understand as well as anyone the capacity of a headline to draw the attention of the reader. Each of the matters complained of was published under a headline likely to attract the attention of a large number of readers, including many who knew Ms Pedavoli ("female teacher quits top Catholic school after claim of sex with boys"; "Sex with students claims: female teacher quits top Catholic boys school"). The correction was less gripping. It was published under the headline "apology". The headline contained no words to indicate the subject matter of the apology, such as "apology to female teacher at Catholic school" or "correction of article on sex with boys".
Further, the prominence given to the apology was unequal to the prominence given to the matter complained of. It was, in my view, highly unlikely to draw the attention of anything like the audience of the matter complained of. The first matter complained of (as it appeared in the print newspaper) stretched over pages 2 and 3 of the Sydney Morning Herald, on a Friday. In addition to the compelling headline, it was visually stark, appearing under a large photograph (illustrating a different story).
The estimated readership for the newspaper that day was 769,000. For obvious reasons, it is not possible for the defendants to estimate the portion of the readership that read the matter complained of, but the overwhelming likelihood is that many readers opened the newspaper to read page 2.
The online version of the article was first uploaded onto the Sydney Morning Herald website at approximately 8.57 pm on 30 January 2014. It remained online in its defamatory form until it was amended at approximately 8.42am the following morning in response to Ms Pedavoli's approach to her friend who knew an editor. The defendants do not hold information which enables them to distinguish between the estimated viewing or downloading of the article prior to its amendment. In their answers to interrogatories, the defendants provided an estimated number of unique page views of the article, both in its initial form and as subsequently amended (from 31 January 2014 until it was taken down altogether on 13 February 2014). Based on those estimates, the article was downloaded 18,693 times in New South Wales alone before the incorrect information was removed.
Of course, only a subgroup of each audience (print and online) would have identified Ms Pedavoli but, as already explained, the apology was not well aimed to reach those subgroups.
As published, the apology was barely noticeable. On the website, it was available for download via a link at the very bottom of the homepage headed "apology". In the case of the online apology, the absence of any headline such as to invite the attention of readers who had read the matter complained of is all the more significant. The difference between the interest likely to have been generated by the headlines of the matters complained of and the unobtrusive "apology" could scarcely be more stark. In my view, it did not have sufficient prominence to bring it to the likely attention of roughly the same audience, or even a small percentage of the audience who read the matters complained of and understood them to refer to Ms Pedavoli.
Further, there is no evidence that the apology was published to all of the audience of the matter complained of. Even if the apology published in the printed newspaper and online was of sufficient prominence to reach roughly the same audience as the matter complained of in those two forms of publication (which I do not accept), there was no evidence that it was published to the recipients of the tablet app. Mr Blackburn submitted that it was enough that it was published online. He went so far as to suggest (at T209.41) that the onus was on the plaintiff to prove "that what was published in the iPad was different to what the reader would have seen when one went on the computer". He submitted that the fact that the apology was published online was "the end of that issue". I do not accept that submission. There were 9,129 unique page views of the first matter complained of using the tablet app. There is no evidence whatsoever to establish any prospect of the apology having reached that audience. This is an issue on which the defendants bear the onus of proof.
On my analysis of the issue raised by s 15(1)(e), the defendants did not have to offer to publish the apology to the Twitter followers or in The Age. I would nonetheless regard it to be a relevant and significant consideration, in determining whether the offer was reasonable, to determine whether any steps were taken to tell those persons that the matter complained of was defamatory of Ms Pedavoli. Further, for the purposes of s 18(2)(a) (the mandatory requirement to consider any correction or apology published before any trial), it is relevant to determine whether any apology or correction was in fact published to those persons (accepting that there was no express statutory requirement to offer to do so).
No correction was tweeted to the Twitter followers and no step was taken to tell them that the matter complained of was defamatory of Ms Pedavoli. Whatever the correct analysis of the requirements of s 15(1), I consider the fact that there was no relevant tweet whatsoever to be a significant additional reason for reaching the conclusion that the offer was not reasonable.
As to The Age, the position is complicated by a measure of confusion in the evidence. Mr Blackburn submitted that there is no evidence that the matter complained of was downloaded by any person via The Age website. There was evidence of a search conducted by the solicitor for the plaintiff suggesting that a link to the defamatory version of the article was available on The Age website as at 9.52pm on 30 January 2014 (affidavit of Andrea Rejante sworn 3 October 2014, exhibits W and X). Notwithstanding Mr Blackburn's protestations to the contrary, I am satisfied as to the reliability of that evidence. However, unless I have missed something, I think it is correct to say that there was no direct evidence that the article was in fact downloaded via that link or from The Age website by any reader. A conclusion as to publication (downloading) from The Age could only arise as a matter of inference.
The confusion arises from a document tendered by Mr Blackburn, produced on subpoena by The Age (exhibit 2). The document appears to be a screenshot of the non-defamatory version of the article (that is, the version that remained after the incorrect information had been removed) together with the apology, all on the same page. As I understood the purpose of the tender, it was to prove that the apology was published, even though it was denied that the article was published.
With no witness to explain the precise implications of the document, it is difficult to draw any firm conclusion on that issue. It seems likely that the apology was made available for downloading on The Age website in some form at some time, but there was no evidence as to how one would find it or whether anyone did.
In the result, there is no evidence on the strength of which I could be comfortably satisfied as to either the likely audience of the article or the likely audience of the apology on The Age website. I would observe that the complexity surrounding this issue highlights the need for a plaintiff to be told at an early point the identity of all other persons to whom the matter complained of has been given, which is the clear object of s 15(1)(e).
In any event, even leaving aside the position of Twitter and The Age, in my view the measures taken by the defendants were unlikely to bring the apology to the attention of anything near the audience of the matter complained of (by which I mean those to whom the matter was published who understood it to refer to Ms Pedavoli). That is a factor which strongly militates against a finding that the offer was or is reasonable.
For completeness, I should record a submission put by the plaintiff that the offer was not reasonable because it was subjectively insincere and intended not to correct the damage done but to avoid liability. I do not think a basis has been established for drawing that inference.
Other components of the offer
It is of course necessary to consider all of the elements of the offer taken together. The offer included reliance upon the steps that had already been taken at the request of Ms Pedavoli to correct the online version of the article. I accept that that was a prompt and significant step towards making amends.
Offer to pay damages
The offer also included an offer to pay damages in the sum of $50,000. Having regard to the seriousness of the defamatory imputations conveyed by the article, I consider that a monetary payment was essential to achieve a reasonable offer in the present case, even if the apology had been of equal prominence to the matter complained of and carefully targeted to reach roughly the same audience (which I am not persuaded it was). There may be cases in which the publication of a reasonable correction combined with a contrite apology (entailing acceptance of responsibility for the defamation) might obviate the occasion for payment of damages as well, but this is not such a case. The defendants' submissions implicitly acknowledged that, in order to repair the hurt suffered by Ms Pedavoli, some monetary payment was required.
Mr Blackburn submitted that the adequacy of any monetary offer as part of an offer of amends should not be judged by reference to the range of damages the plaintiff would have received at trial. If what was meant was that a reasonable offer does not have to include an offer to pay an amount within the range of a full assessment of damages as if after a trial, that is undoubtedly correct. Apart from anything else, that would overlook the reparation achieved by the mandatory components of the offer, particularly the requirement to publish a reasonable correction. The reasonableness of any monetary offer is necessarily informed by the reasonableness of the correction, including the extent of its reach. To adopt any different approach would subvert the object of the Act of encouraging the non-litigious resolution of defamation disputes. But the seriousness of the defamation undoubtedly remains a relevant factor in assessing the reasonableness of the monetary component of an offer.
I also accept, as submitted by Mr Blackburn, that the Court must be mindful of the fact that the grounds of aggravation now relied upon by the plaintiff were not known to her at the time the offer was made (and hence had not aggravated her damage). However, even at the time the offer was made, the defendants ought to have appreciated that the defamation was such as to cause extreme hurt and distress to Ms Pedavoli.
The seriousness of the defamation could scarcely be any worse. But for the fact that the plaintiff was not named in the article and the prompt correction of the online edition, this defamation would clearly have fallen within the worst class of case. Accepting that the assessment as to the adequacy of the sum offered must be informed by the other components of the offer and the fact that acceptance of it would have made amends and obviated the need for a trial, I do not think the sum offered was enough to bring the whole of the offer, with all its components, up to the mark of being one which could be characterised as reasonable in all the circumstances. That conclusion is based upon both my assessment as to the inadequacy of the correction and apology and my assessment of the seriousness of the imputations (with the extreme hurt they would inevitably have caused).
For those reasons, I am not satisfied that the defence of failure to accept an offer of amends is established.