Defamation

With thanks for contributions from Leanne O’Donnell (@mslods / mslods.com), Virginia Leighton-Jackson and Griffith University media freedom interns

Recent Cases

Gina Rinehart and “House of Hancock”

Mining magnate Gina Rinehart has filed documents in the NSW Supreme Court for defamation and malicious falsehood for Channel 9’s miniseries House of Hancock. Prior to the release of the second episode in February Rinehart sought an advanced viewing of the show and made a last minute deal, resulting in four minutes of the episode being cut (with a confidentiality settlement regarding the omitted content) and a disclaimer stating that the show was not a documentary and that Rinehart was not interviewed or consulted for it.

After the second episode aired she amended her claim to include malicious falsehood. Malicious falsehood carries three qualifiers:
- the statements were motivated by malice,
- there was an intention to cause damage to the plaintiff’s business, and
- actual financial harm was sustained by the business.
A date has not yet been set for a trial, but in the interim Rinehart has been awarded a permanent restraining order preventing Channel 9 from further broadcasting both the on-air and unedited versions of the show.

Hall, L. 01.03.2015, “Gina Rinehart to sue Channel Nine for defamation over House of Hancock TV mini-series”, The Sydney Morning Herald: Entertainment, < www.smh.com.au/entertainment/tv-and-radio/gina-rinehart-to-sue-channel-nine-for-defamation-over-house-of-hancock-tv-mini-series20150301-13rrmz.html>

Pedavoli v. Fairfax Media – identification without identification

In January 2014, The Sydney Morning Herald ran the article “Female teacher quits Catholic School after claim of sex with boys” (republished online as “Sydney teacher quits amid Year 12 sex claims”), which mistakenly identified an individual as the teacher at the centre of sexual misconduct claims.
- The paper did not identify the teacher in question by name, but rather by a very loose description – mainly because they did not actually know who was involved.
Information about the potential identity of the teacher involved in the allegation had been passed from journalist to journalist from an anonymous source, and via the website “Rate My Teacher”, from which can information that the plaintiff ‘might’ be the teacher. The journalist also spoke to the Rector of the school, who confirmed that a teacher had been dismissed, but did not provide any details as to her identity for privacy reasons.
Without any confirmation of details, descriptors, or identification, the paper published the allegations and a description of who they though was the teacher involved. The only teacher who fitted the description provided was the plaintiff – and was held that it was enough to identify her. Ironically, the teacher at the centre of the allegations did not fit the description published and would not have been identifiable.
Fairfax was unable to provide a defence other than the offer of amends, which the plaintiff did not accept – on the grounds that the apology published did not have a great reach (especially when compared to the circulation of the article, its access online, and discussion on social media), and the monetary value attached to the amends did not take into account the seriousness of the imputations.
- The plaintiff was awarded $350,000 in damages.

–Virginia Leighton-Jackson

Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 (27 November 2014), < http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWSC/2014/1674.html>

Recent Legislation

Recent News

Politicians and defamation

In recent months a number of politicians have launched, or are threatening to launch, defamation suits for comments made about them in the media. (See Media Watch, 16-3-15 ‘Hockey, Fairfax and the right to sue’.)

Joe Hockey v. Fairfax

The Australian Treasurer has launched a defamation suit in the Federal Court against Fairfax journalist Sean Nicholls, a writer at The Sydney Morning Herald. In May 2014 Nicholls wrote an article headed ‘Treasurer for sale’ which Hockey claimed suggested he has “privileged access to a select group [of people] including business people and industry lobbyists in return for tens of thousands of dollars in donations”, conveyed that he was corrupt, and that he accepted bribes paid to influence the decisions he made as Treasurer.

Hockey also claims that Fairfax acted maliciously in both publishing the article and in being unwilling to publish an apology.

Fairfax has denied that there had been plan to ‘crucify’ the Treasurer by publishing the articles, and has refuted the Treasures interpretation of internal memos and emails in relation to the motives in publishing the article.

The case is ongoing and is due back in court later this month.

Hall, L. & Whitbourn, M. 11.03.2015, “Joe Hockey defamation case: ‘nailed to the cross’ did not mean ‘crucify’ the Treasurer, court hears”, The Age: Federal Politics, < http://www.theage.com.au/federal-politics/political-news/joe-hockey-defamation-case-nailed-to-the-cross-did-not-mean-crucify-the-treasurer-court-hears-20150312-141du0.html>

Hall, L. & Whitbourn, M. 12.03.2015, “Joe Hockey defamation case: ‘crucify’ suggestion ridiculous says Herald editor-in-chief Darren Goodsir”, The Age: National, < http://www.theage.com.au/national/joe-hockey-defamation-trial-crucify-suggestion-ridiculous-says-herald-editorinchief-darren-goodsir-20150312-141zyj.html >

Former Queensland premier Campbell Newman, Palmer United Party leader Clive Palmer and Federal Treasurer Joe Hockey are all considering suits after negative comments were made during the lead up to the Queensland State Election in February.
- Newman is suing Sydney talkback host Alan Jones for comments made during his radio broadcasts, some of which were broadcast in Brisbane, claiming that Newman was a liar in his role
- Hockey is suing Fairfax after their papers ran the front page “Treasurer for Sale”, which he claims alleged that he accepted/ was prepared to accept bribes, that he corruptly solicited payments, and that he offered access to privileges in return for donations to the Liberal Party. It is interesting to note that Hockey is commencing action in the Federal Court of Australia, rather than in a state or territory.
Crikey commentator Myriam Robin notes that it is far easier in Australia for politicians to launch defamation actions than it is in countries like the UK, USA or Canada.
- “That’s overwhelmingly because of our legal framework, which contains only an implied right of political communication, and a narrowly interpreted one at that… The flurry of writs issued by politicians like Campbell Newman, Clive Palmer and Joe Hockey were likely helped along by the fact that several recent High Court decisions have shown the court is reluctant to strongly interpret the freedom of political communication defense.”

–Virginia Leighton-Jackson

Robin, M. 28.01.2015, “Buck up, Campbell – when it comes to defamation, Australia is a litigious pollie’s dream”, Crikey, < http://www.crikey.com.au/2015/01/28/buck-up-campbell-when-it-comes-to-defamation-australia-is-a-litigious-pollies-dream/>

Rolph, D. 28.05.2014, “Hockey’s defamation suit shows need for wider free speech debate”, The Conversation, < http://www.crikey.com.au/2015/01/28/buck-up-campbell-when-it-comes-to-defamation-australia-is-a-litigious-pollies-dream/>

Turner, R. 2014, “Internet Defamation Law and Publication by Omission: a multi-jurisdictional analysis”, University of New South Wales Law Journal 34, 2014, 37 (1) < http://www.austlii.edu.au/cgi-bin/sinodisp/au/journals/UNSWLawJl/2014/2.html>

This paper discusses how defamation applies to internet search engines, social media/ web 2.0, and online discussion forums, and how it represents a point of contradiction in the law, not just in Australia, but also New Zealand, Hong Kong, and the United Kingdom.
Discusses online publication of defamatory material and its differences to physical publication, particularly by search engines such as Google (which generates a snapshot of the website content – this snapshot and the prioritisation of links has been questioned in relation to defamation).
Defamatory publication by omission
Proposes how defences interact with the internet

–Virginia Leighton-Jackson

Press Council chair Julian Disney at the National Press Club on defamation

As Julian Disney retires as chair of the Australian Press Council, he has addressed the National Press Club on free speech and changes he would like to see to the current defamation laws in Australia.
Defamation is in need of reform because it is simultaneously too harsh and too soft to function effectively. Rather, he would like to see defamatory material defined by three classes:
- Distress caused by the publication
- Prejudice to the plaintiff as a result of the imputations
- Risk to the health or safety of the plaintiff as a result of publication
- Disney qualifies this by saying that these three classes need to be ‘greater than can be justifiable in the public interest’, pushing that publication of defamatory matters should not be hindered when it is in the benefit of the public to have access to the information (this protects against concerns of prior restraint and intimidation).
Disney goes on to talk about threats to freedom of speech and the recent Charlie Hebdo massacre.
Elaboration of his views is available via a transcript of his interview with Mark Colvin on ABC Radio National: abc.net.au/pm/content/2015/s4174025

–Virginia Leighton-Jackson

Colvin, M. 04.02.2015, “Most freedoms if they become absolute destroy themselves: Julian Disney”, ABC Radio National, PM, < www.abc.net.au/pm/content/2015/s4174025>

International News

Legal blogs and protected speech (USA)

A court in Illinois, USA, has held that federal law protects internet publishers from defamation claims based on content and comments made by third party users on their websites, primarily in the case of news article comments. A legal blog which covered the plaintiff’s arrest generated more than 100 comments, some of which the plaintiff held were defamatory, and sought to hold blog publisher liable. The Court dismissed the claims based on the Communications Decency Act (47 U.S.C. 230 (c)(1): “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

–Virginia Leighton-Jackson

Leito, J. 14.01.2015, “Legal blogs and Protected Speech”, Social Media Law Bulletin, < www.socialmedialawbulletin.com/2015/01/legal-blogs-and-protected-speech>

Irish Judge sues newspaper for libel (IRE)

A judge in Ireland has sued The Sunday World for its reporting on a sentence he handed down to a barrister for motoring offences. The paper is accused of wrongly implying that the judge had shown favouritism in his dealing with the case and had ordered a punishment that was ‘unusually light’ for a repeat offender.

News Letter. 13.05.2014, “Judge sues newspaper for libel over report”, The News Letter, < http://www.newsletter.co.uk/news/regional/judge-sues-newspaper-for-libel-over-court-report-1-6055507>

Other news

Tasmania drops plans to let corporations sue protestors for defamation. | The Guardian | http://bit.ly/1DHu3P6