Is accusing someone of being a witch defamatory? In Nyasulu v Naikelekele [2022] NSWDC 507 the plaintiffs brought proceedings for twelve social media posts on their Church website by a former Church member saying they are devils running a satanic cult, with the court considering whether the “consensus” of modern public opinion means that the imputations pleaded were incapable of defamatory meaning and serious harm.
The judgment states
The plaintiffs are the founders and leaders of Streams International (“Streams”), a prophetic ministry which operates in New South Wales, Queensland and South Australia. The defendant is a former member of Streams.
Over a two-day period (8 - 9 September 2021) the defendant published a series of twelve posts on the Ministry Facebook page in similar terms. Each of them is pleaded to convey imputations of use of satanic or demonic power by each plaintiff for the purpose of stealing away the defendant’s daughter. The similarity in content and short time period for publication for these posts are important factors in the determination of the issues before me. ...
(c) The defendant also submits that there is a “consensus requirement” that a statement can only be defamatory if it imputes some conduct or quality that would seriously harm the claimant’s reputation in the eyes of “right-thinking members of society generally” (Sube at [4]), citing Falkenberg v Nationwide News Pty Ltd (Supreme Court of New South Wales, Levine J, 16 December 1994) and Loukas v Young [1968] 3 NSWR 549 at 50 (“witch” not defamatory); see also Tabbaa v DailyMail.com Australia Pty Ltd (ACN 166 912 465) [2015] NSWDC 278 (“evil”)). In the twenty-first century, Ms Hart argues, how can it be defamatory to say of someone that they are a “demonic prophet of Satan” or even the devil himself? ...
The relevant principles of law Section 3(d) of the Act, under the heading “Objects of Act”, states that the fourth of these objects is “to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter”. The emphasis on speedy and non-litigious means of resolution in s 3(d) is central to the functioning of the legislation in general and the concerns notice procedure in particular. Section 10A of the Act identifies “serious harm” as an element of the cause of action for defamation. The publication must be established to have caused, or to be likely to cause, serious harm. ...
In the Council of Attorneys-General Review of the Model Defamation Provisions - Background Paper (December 2019, p. 25), the dangers of a proliferation of “neighbourly disputes” and “backyard defamation” were noted. The purpose of mandatory concerns notices is to promote swift resolution of such matters, without recourse to litigation, by use of the offer of amends process where appropriate. The purpose of the ability to respond by offer of amends is to achieve a settlement of the whole of the proceedings, and to do so informally and outside the court system. Previously, the undesirable situation had been that a plaintiff could simply serve a statement of claim and treat it as a concerns notice (Mohareb v Booth [2020] NSWCA 49; Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570; [2016] NSWCA 283; s 12A(2) was specifically enacted to overcome the effect of these appellate decisions). ...
careful analysis of the whole of the concerns notice demonstrates that not only are there such particulars, but there are nearly eight pages of them, as the following summary demonstrates: (a) The general tenor of the first two pages is that the defendants’ series of posts individually and collectively caused personal distress and humiliation to the plaintiffs through their ministry, as they have been deluged with messages by the thousands of readers who saw them. The defendant made “extremely serious” allegations damaging to the plaintiffs’ reputations in the eyes of these persons. (b) This includes four paragraphs of details (headed “Relevant Cultural and Reputational Matters”) and a description (on pages 1 - 2) of the plaintiffs’ work in the Ministry, not only in Australia but at other locations, and how that work has been affected. (c) There is then a heading: “The involvement of You and Your daughter in the ministry” setting out how the defendant left Streams while her daughter chose to remain. (d) The defendant is next told about the responses of the members of Streams to the publications (submissions, paragraphs 21 - 24). This section describes some of the responses of the readers of the matters and the impact this has had on the plaintiffs’ reputation. (e) The next heading, “The defamatory publications”, identifies each of the publications made between 8 and 9 September made by the defendant under a pseudonym. The texts of each of the publications and the publishee are both set out. (f) This is followed by the defendant’s list of the imputations of concern, on page 6 of the concerns notice. This list of 22 imputations sets out that the matters complained of “carry numerous defamatory imputations, including...”. (g) The next heading is “Damage caused and ongoing”. This sets out precise figures for the extent of publication. The assertion is made that the Facebook page (erroneously described on page 8 as “this letter”) has reached 28,731 people across the world, with 10,024 post engagements, 5,493 link clicks and 4,512 persons watching an embedded video for more than 3 seconds. This is followed by “examples” of public exchanges between the defendant and the persons to whom she addressed her posts. It concludes by noting that other content has been posted on “other social media locations.” This is clearly an ongoing issue; Mr Sibtain SC referred in his oral submissions to publications to over 80,000 people and to the need for further particularisation in the future. (h) The letter concludes by setting out the orders that will be sought, including a figure for general damages and a claim for exemplary damages (which I assume is an error, in that there should be a separately assessed figure for aggravated damages pursuant to s 35(2B) of the Act. Exemplary damages are not available: s 37 of the Act.) (i) The letter then concludes with an invitation to make amends for the hurt and damage to reputation suffered....
The “consensus argument” that in the 21st century, these publications are not even capable of defamatory meaning
Ms Hart, relying on the “consensus argument” in Sube as well as on Falkenberg v Nationwide News Pty Ltd, submits that in modern society, particularly taking into account the manner in which social media posts are read in a somewhat cynical fashion, the matters could not give rise even to defamatory meaning, let alone serious harm, as comparison to the devil would not be taken seriously; it was evident from the matters complained of that nobody took the defendant literally or believed what she said.
There are a number of judgments where courts have held that allegations of witchcraft (WIC Radio v Simpson [2008] 2 SCR 420 at [97], citing Loukas v Young [1968] 3 NSWR 549), being the devil (Falkenberg v Nationwide News Pty Ltd) and even sleeping with the devil (Peschmann v Quayle (WD, Pa., 13 August 2019) are rarely likely to be defamatory in “a modern developed society”, because such an imputation “would not be believed and therefore would not harm the plaintiff’s reputation” (WIC Radio v Simpson at [97]). Mr Sibtain submitted in response that it was “not trivial” to say that the plaintiffs were the devil incarnate and running a satanic cult. This submission may be disposed of in relatively brief terms. In Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682, the plaintiff, a gynaecologist, brought proceedings for defamation for being called an abortionist. The action was struck out at first instance on the basis that the word did not have a particular defamatory meaning. On appeal (referring, inter alia, to imputations of being a communist), Glass JA noted the differing views in other jurisdictions:
“There is no need to document the existence in the community of a deep factional divide on the issue of abortion. The pro-abortion lobby approves the existing grounds for lawful termination of pregnancies and seeks to have them extended. The anti-abortion lobby contends that all abortion is morally wrong and that no abortion should be lawful. So the description of the plaintiff as a lawful abortionist will excite both approbation and disapprobation in different sections of the community. How does the law of defamation accommodate these discrepant social attitudes? There is a body of English authority which suggests that the standard of opinion is that of “right thinking people generally”: Tolley v J S Fry & Sons Ltd [1931] UKHL 1; [1930] 1 KB 467, at 479; Sim v Stretch [1936] 2 All ER 1237, at 1240; 52 TLR 669, at 671. The corollary to this proposition was that an imputation of conduct which disparaged the plaintiff only in the eyes of a limited class was not defamatory; Byrne v Deane [1937] 1 KB 818; Myroft v Sleight (1921) 90 LJKB 883; Clay v Roberts (1863) 8 LT 397. In the United States, on the other hand, an imputation can be defamatory if it injures a man in the eyes of “a considerable and respectable class in the community” though it be only a minority, Peck v Tribune Co [1909] USSC 135; 214 US 185, at 190 (1909), in which Holmes J said “liability is not a question of a majority vote”.
