Defamation

'Rebel Wilson's Pitch Perfect Defamation Victory' by David Rolph and Michael Douglas in (2018) 29(2) Entertainment Law Review 37  comments

Few successful defamation plaintiffs are awarded six figure defamation damages in Australia. This is principally because damages for non-economic loss in defamation claims — the principal, indeed usually the only, head of damages sought — are now capped under statute. Few high-profile celebrities sue for defamation to final judgment in Australian courts. So when the comedian and actress, Rebel Wilson, was recently awarded almost AUD 4.57 million damages by a judge of the Supreme Court of Victoria, the case is newsworthy and noteworthy. Wilson sued a number of related women’s magazine titles essentially over allegations that she serially lied about many aspects of her life. The award of damages to Wilson is the largest ever made by an Australian court for a defamation claim. Besides the record-breaking quantum, Wilson’s claim against Bauer Media is important because it is the first time the statutory cap on damages for non-economic loss — an important feature of the national, uniform defamation laws introduced a little over a decade ago —has been exceeded. It is also significant because not only is it one of the rare cases in Australia where damages for economic loss have been sought and granted, it is the first case in Australia where damages for economic loss have been calculated on the basis of loss of opportunity. Wilson v Bauer Media also raises some difficult doctrinal questions of the interaction between defamation law and conflict of laws, where an international celebrity sues locally for damage to reputation which, due to the "grapevine effect", occurs outside the jurisdiction.

The UTS Centre for Media Transition Trends in Digital Defamation report comments

 In our review of defamation cases and decisions over the five-year period, 2017 resembles 2013, but there were more cases in 2014, 2015 and 2016 ... 

New South Wales was found to be the preferred forum for defamation actions, as found by previous studies. More matters reached a substantive decision in New South Wales than in all other jurisdictions combined (95 cases for NSW, compared to 94 cases in all other jurisdictions). ...  

As well as the 189 cases we located through our searches, there were 609 related decisions (for example, separate rulings on evidence), requiring a significant commitment of resources on the part of defendants. And there were 322 other matters also in the system, including appeals from earlier decisions and preliminary decisions on new matters. Combining these two categories, we found at least 511 defamation ‘matters’ making their way through the Australian courts in the period 2013 to 2017. A complete picture of legal action on defamation   would include other matters that were the subject of summary dismissals, and the many matters that are settled before a claim is filed in court. 

Of the 189 defamation cases over the period 2013-17, 97 (51.3%) were digital cases. Perhaps surprisingly, there is still a solid number of cases (92, or 48.7%) that were not digital cases. 

Compared to a decade ago, the overall number of cases was similar. The number of defamation cases – that is, matters for which there was a substantive decision in that year – was almost the same in 2017 as in 2007 (30 compared to 29 cases). Not surprisingly, the proportion of digital defamation cases was much greater in 2017 (16 cases, 53.3%) than in 2007 (5 cases, 17.2%).

Our findings contradict common assumptions about public figures being the main users of defamation laws. It is becoming more common for private individuals to be the plaintiffs in defamation actions. Private individuals are also more likely to be the defendants (sometimes with their employers):

• In the period 2013 to 2017, only 21% of the plaintiffs in judgments we examined could be considered public figures; 

• Only 25.9% of the defendant ‘publishers’ were media companies. The form of digital publication varied: 

• There were three cases (all relating to search results) in which Google was the defendant; 

• There were 16 cases involving Facebook posts, 20 involving emails, four involving tweets and two involving text messages; 

• There were 37 cases involving websites not affiliated with media organisations, Facebook or Twitter.

Outcomes varied too, with the plaintiff successful in between 27.3% and 43.3% of cases in the years reviewed. Overall, about a third of plaintiffs were successful. Specifically, plaintiffs succeeded in 34.9% of cases, or 66 of the total 189 cases. 

This is an interesting result, suggesting that – even without taking into account the costs involved in defamation actions – litigation is in the majority of cases an unsatisfactory experience for someone who considers their reputation has been harmed. 

Of the 87 awards of damages made in the five years 2013 to 2017, 38 were of $100,000 or more.

The authors state

This report provides data on aspects of ‘digital defamation’ cases over the five-year period 2013 to 2017. It is intended as a short, sharp outline of one area of concern for journalism in an era of digital publishing, news aggregation and social media. 

In that respect, it is part of the exploration of change, challenge and adaptation facing the journalism that marks out the work of the Centre for Media Transition. It also demonstrates why we think work in this area often needs to be interdisciplinary – in this case, bringing together knowledge and experience from the disciplines of journalism and law. 

The report considers three key questions:

1. Who commences and proceeds with a defamation action, at least to the stage of an initial judgment of a court? 

2. Who are the ‘publishers’ these actions are brought against? 

3. What are the platforms on which defamatory matter is said to be published?

In examining ‘digital defamation’ we do not mean to dismiss publication in print or through broadcast media. In Australia, television, and some radio, is itself ‘digital’ and print media has published online for more than two decades. At shown by the decision in the action brought by former Treasurer Joe Hockey, the decisions made by publishers on where and how to publish can be critical in their exposure to claims of defamation. By ‘digital defamation’, then, we mean matters where publication in digital form is a core part, though not necessarily the exclusive form, of publication. 

Essentially, we set out to check some assumptions that availability of digital platforms, and a preference for them by many news consumers, could change the nature of who sues whom. The five-year period of this review makes some inroads into this analysis, and by way of brief comparison we apply our same method for investigating our three principal criteria to a single year (2007) a decade earlier, before the widespread adoption of social media. Utilising limited resources (specific limitations are noted in relevant chapters), the report should not be regarded as a definitive investigation of the issue. Rather, it aims to be an indicative review of ‘digital defamation’. Its findings point to the need for a broader debate among lawmakers at state and federal level as well as among the media industry and the platforms that have become essential to distributing the industry’s work. 

Similarly, as the report is limited to the above three points of inquiry, it is essentially an exercise in data analysis. As such, it should not be regarded as an analysis of the developing jurisprudence on defamation. However, some context is needed for this study of plaintiffs, defendants and platforms, so a brief overview of the current position on liability for publication online and in digital forms is set out below. 

Links, likes and lists: How the law treats digital defamation 

The starting point for many commentaries on defamation online is the early, defining judgment on place of publication, Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575. The certainty offered by this decision of the High Court of Australia in 2002, which set into law the proposition that an action for defamation can be brought in the place where someone downloads the material (where, it is said, the defamation is ‘published’), is not matched in the law’s application to other key issues in online publication. 

For media organisations, search engines and social media platforms, there are some common questions around ‘who is a publisher’. Resolution of disputes requires close examination of the facts of production, distribution and access, and the application of law to the facts of any case is complicated by the co-existence of common law principles with (partial) statutory protections. 

The question of liability generally begins by asking whether the digital platform has actively published the content itself, and is therefore a ‘primary publisher’. Under the principle in Webb v Bloch, every person who contributes to the publication of the defamatory material is liable – hence in traditional media environments, journalists and editors as well as publishing companies have been sued. The need for media organisations to exercise editorial control over what they publish, including their archives, has meant that the law of defamation has reached into their online activities, with some questions remaining over liability for some material. One example is the extent to which adoption or endorsement of hyperlinked material might extend liability, as discussed in Visscher v Maritime Union of Australia (No 6). 

But for web hosts, bulletin boards, search engines and others who are not media organisations, the issue may not be whether they are a primary publisher in their own right, but whether they become a secondary publisher through having knowledge of and control over the material and through not taking action. This principle has evolved under common law including from the English case of Byrne v Deane, but its application varies depending on the circumstances. If the party is considered to be a publisher, there may still be a defence, under common law and under Australia’s uniform defamation legislation, for innocent dissemination, which also raises elements of knowledge of the material. 

Differing views have been taken on whether the ‘passive’ character of an ISP can be applied to search engines, at least where the search engine does not also host the content (see the UK cases of Bunt v Tillery and Tamiz v Google Inc), and whether this changes when a search engine is aware of potentially defamatory material and fails to take action. The liability of search engines has been considered recently in decisions of the New South Wales Supreme Court, the Full Court of the South Australian Supreme Court, and the Victorian Court of Appeal. Leave to appeal the last of these decisions to the High Court of Australia has been granted. This may help determine whether the law in Australia protects algorithmic generation of material which is defamatory, taking into account the level of awareness and control over the content, and the effect of the search engine being notified by a complainant of offending material. 

In the social media environment, a user with, say, a Facebook page, may publish content and invite friends to like or comment on their post. Murray v Wishart, a decision of the New Zealand Court of Appeal, established that the person who has the Facebook page – not Facebook itself – could be liable as a publisher if they were aware of disputed content and failed to take action. 

There are many variations on the circumstances described above, as the law has attempted to deal with forms of digital distribution ranging from email to chat rooms. Some useful commentaries are listed in the Resources section at the end of this report. Further information on some of the cases mentioned here is found in Chapter 4, Digital Defamation Snapshots.