Lying defamation defendant shot down by Sporting Shooters – $887,027.66 in damages: Moroney v Zegers [2018] VSC 448

SSAAVFor a short time in 2012, Karel Zegers was the Acting President of the Victorian branch of the Sporting Shooters Association of Australia (SSAAV).  His position on the Board was up for election in August that year and he decided to set up a website to run his campaign: shootersvictoria.com. He lost the election and on his last night in power, he used his position to send an email to the entire membership of the SSAAV complaining that the membership had been misled and they had not received the truth…. Not that he was a sore loser. In any event, it was a sign of things to come.

In 2014, there was another election for positions to the Board. Zegers ran again for a position and another website coincidentally appeared: Vicshooters.com.

On his candidacy profile, Zegers referred to the VicShooters.com website. Along with that, numerous emails were sent to the SSAAV members stating that the Board and Jack Wegman, its CEO, were dishonest, had lied, had deceived the membership and had overseen financial disasters. Those 2014 emails were largely sent from an address: info@vicshooters.com. Sentences like:

  • And no amount of PROPAGANDA, FALSE INFORMATION and LIES is ever going to change the truth”;
  • It appears the Board thinks it can do as it sees fit without any consequence.”;
  • What else have they done wrong? Whatever it is, it must be bad, considering their efforts to hide all the information about their actions…. Don’t believe their propaganda”;
  • Or worse still, are being told fibs (LIES!)”;
  • All the while most members are not aware of the situation, are being fed propaganda making them think all is good.”;

Zegers was not named as the author of any of these. All of the emails were anonymous.

Nine members of the Board, together with its CEO, Jack Wegman, sued Zegers in defamation, and the matter got to trial in March and April this year. Shortly before the trial, in January 2018, another anonymous email reared its head. It urged people to come and watch the trial. Among other things, it stated:

  • Mr Zegers is looking forward to the trial saying: ‘At the trial all the lies and false information given to the Board and SSAA (VIC) members in general will be out in the open for all to see and their cover-up will end. As well as that, there will be media presence, they will hear the evidence of the lying and the trickery that has been going on by some of the ‘leaders’ of our Association. The behavior of these people is immoral, at times illegal and certainly in breach of the SSAA (VIC) Constitution.’ We understand that Karl’s legal representatives will show all the damming evidence of this as it is revealed to the Court.”

From the outset of the trial, Zegers denied publishing the emails.  He essentially relied on the Bart Simpson

The defendant

The defendant

defence: No-one saw him do it. No-one heard him do it. No-one can prove anything….

After the opening submissions on day one of the trial, the plaintiffs stated an open offer to settle the case: Zegers apologise, undertake not to write anything about them again and there would be no order as to costs. Bargain!

Offer rejected.

Zegers wanted to run his truth defences, all the while denying that he wrote the emails in the first place.  This was also despite warnings from Justice Dixon on day one, having heard the openings, that the sparse material that Zegers relied on to establish dishonesty, lies and deception went nowhere near proving any of that. His Honour stated that if it were a jury trial, he would not have even allowed many aspects of the truth defence to go to a jury.

Nevertheless, the trial continued. Among the seventeen witnesses on the plaintiffs’ witness list was Peter Erkens-Goss, the IT man who apparently created vicshooters.com. The plaintiffs sent him a subpoena to produce documents and possibly appear. Erkens-Goss submitted a document headed “Reply to Subpoena received by Goss PC Repairs”. It stated:

-          The website was owned by someone called “Steven”, who was not a paying customer, but had won their hosting as part of a competition;

-          Goss PC Repairs had since shut down; and

-          he had received no communications with the actual website owner.

On day four of the trial, His Honour Justice Dixon ordered that Zegers present his computer for analysis. That afternoon, when he was due to give evidence, Zegers was suddenly “ill” and did not return to court that day.

The following Monday, Zegers produced his computer and was due to be cross-examined. Under cross-examination, Zegers was asked about the similarities between what he wrote in other material on the earlier Shootersvictoria website and the content and style of the anonymous emails. In particular, in the material Zegers admitted to having written:

  • to indicate sarcasm, he often put single words in inverted commas, for instance: “information”, “governance”. Then in the nine anonymous emails, inverted commas were also used repeatedly in the same way;
  • he often used an unusual grammatical device, being a colon, and then the next word commenced with a capital letter. This re-occurred in the nine anonymous emails 14 times;
  • he often used a hyphen incorrectly. He wrote: “mis-understanding”, “un-necessary” and “un-believable”. In the nine emails, the same error appeared on several occasions and even in the same word:

un-believable”…. which seemed apt;

  • he wrote: “its an old political trick, accuse your opponents of exactly what you do yourself”. In one of the nine emails, virtually this exact statement was repeated. Given that Zegers ran in the 1998 election as a One Nation candidate, Zegers was well-versed in political strategy.

Faced with all of this in the witness box – Zegers still denied writing the emails. Over and over.

Meanwhile, the computer expert who had been appointed, Leanne Ballit, attended court and spent the day looking at the computer in a side room.

At the end of the day of cross-examination of Zegers, Ms Ballit returned.  While Zegers remained in the witness box, this exchange took place.

HIS HONOUR (Ms Balit): I take it you’ve come back into court because you’ve completed the task of taking the image of the disc, or have you run into problems?

MS BALIT: I have completed the first part. I’ve done an initial review and there appears to be a hard drive missing inside the computer.

HIS HONOUR: Missing what?

MS BALIT: A hard drive missing from inside the computer, which may contain data on it that may be necessary. 

…..

MR ZEGERS: Yes Your Honour. I used to have – a few years ago I used to have what’s called a D drive. Is that correct? Yeah, and…..

A what? — A D drive. A second drive. A D drive, it’s called.

A D drive, yes? — And it started to play up and the data I needed I put on my C drive, or I did. It was put on my C drive, and it’s as a D, which apparently means it’s very, very quick, and all that. And that’s all that’s to it.

So, there was a drive there, but you’ve removed it? — Yeah. And that would be, I don’t know, it could be a year and a half, two years ago. 

Yes, and this is the drive that you said is no longer available? — Yes, that’s correct.

HIS HONOUR (to Ms Balit): Well, you’ve heard that piece of evidence, to the extent that it assists you. I think we can’t solve that problem. 

MS BALIT: Your Honour, it was there last week. There was a D drive present last week….

Not good. The matter was adjourned while Ms Ballit prepared a report on what she then found on Zegers’ computer. The results: 1,683 pages of material, most of which had been deleted, and most of which incriminated Zegers. This included:

  • 320 emails as between Zegers and Erkens-Goss regarding the creation, operation and maintenance of the vicshooters website;
  • pages showing that Zegers had drafted all of the emails that the plaintiffs sued on and emailed them to a database containing at least 4,000 SSAAV members and others; and
  • emails as between Zegers and Erkens-Goss where they prepared the Reply to Subpoena document that Erkens-Goss ultimately produced.

As for Zegers’ denials of having written the emails, the game was up. The next day in court consisted of Zegers sacking his lawyers and then stating that he wanted to apologise to the court and admit to all of his lies.

In the judgment, His Honour set out everything that occurred and swiftly dealt with Zegers’ other defences. The truth defences all failed. The evidence relied upon by Zegers was hopeless and did not amount to anything near dishonesty. The qualified privilege defence also failed. How could a person deny publishing and at the same time say he had a duty to publish? No chance. To be sure, His Honour also found that Zegers acted with malice and aggravated the plaintiffs’ damages with his conduct.

Jack Wegman, tenth plaintiff, was awarded $191,648.78

Jack Wegman, tenth plaintiff, was awarded $191,648.78

Left with assessing damages for nine plaintiffs, His Honour found $75,000 for the first, second, third, fourth and eighth plaintiffs, $80,000 for the fifth and sixth plaintiffs, $90,000 for the seventh plaintiff and $175,000 for the tenth plaintiff, Jack Wegman, who “bore the brunt” of the emails.

Including interest, Zegers was ordered to pay $887,027.66 in damages plus costs on an indemnity basis. The plaintiffs also obtained an injunction to restrain him from writing anything further about the plaintiffs. This is the second highest verdict in a defamation case in the history of the State of Victoria.

If that was not bad enough, His Honour also referred the papers to the DPP to investigate whether Zegers and Erkens-Goss had committed offences in the conduct of the case.  If only Zegers had taken the walk away offer at the start of the case……

Undoubtedly, Zegers’ writings were prophetic. His email of January 2018 was hauntingly accurate: The trial revealed all the lies, the trickery, the cover-up and there was media interest. The only problem for him, was that he was talking about himself…

A well-known political strategy: accuse your opponents of exactly what you do yourself.

 

 

Posted in Damages, Identification, News, Publication, Qualified privilege, Trial, Truth, Uncategorized | Tagged | Leave a comment

Politician not so pushy – Sophie Mirabella wins $175,000: Mirabella v Price & Benalla Newspapers Pty Ltd [2018] VCC 650

Sophie Mirabella was the Member of the House of Representatives for the seat of Indi in rural Victoria from 2001 to 2013. In 2015, the Liberal Party pre-selected her once again to run in the 2016 election. Her opponent was independent, Cathy McGowan who had won the seat in 2013. The 2016 election was set for 2 July 2016.

The plaintiff

The plaintiff

In April 2016, while on the campaign trail, Mirabella found out that the Commonwealth Minister for Aged Care, Ken Wyatt (a Liberal) would be visiting the electorate. One of his appointments was at a local aged care facility for an event to mark the extension of the facility. There was a plaque to be unveiled. A hub for local candidates and the media.

Magowan was in attendance and after the speeches, people mingled and Magowan tried to get a photo with Wyatt at the plaque. While she waited at the plaque, Mirabella told Wyatt that politically, the idea of a photo with her wasn’t a good thing to do. According to Wyatt, Mirabella put her hands on his chest while she said this. She didn’t want to her opponent to seem like a Liberal. She urged Wyatt not to assist.

The next day, the local newspaper, the Benalla Ensign was published. It published an article in ints internal pages, “Awkward Encounter”  referring to the event. It stated that Mirabella “Very publicly pushed Ms Magowan out of the way to obstruct the photograph being taken”. The photo being  of Wyatt and Magowan in front of the plaque. Mirabella, who was not asked for her version of events, was distraught. She did no such thing. She tweeted that she emphatically denied pushing her opponent.

Meanwhile, the ABC reported Mirabella’s denial on twitter and “former ABC presenter, Libby Price stands by the story. She said the incident was witnessed by a number of people and she independently confirmed it took place with four sources.”

The news item was then repeated in The Australian Online, other online sites and there was a Twitter flurry. Among the tweets: “Out of My Way ! – Benalla …. Sophie Mirabella is a bully!’, “I can positively say Sophie has a great left uppercut”,  “THE PUSHINATOR – I Won’t Be Back”, a website with a photo of Mirabella and a headline “Softer, Calmer Sophie Mirabella Pushes Cathy McGowan Rather than Punching Her in The Face”…. Etcetera.

Sophie Mirabella sued The Benalla Ensign and Libby Price, the journalist, in defamation. The newspaper ran an apology well after the election in October 2016 (which Magowan won) and it took a while before she issued, but in any event, the matter came before a jury in the County Court in Wangaratta.

Mirabella claimed that the articles meant and were understood to mean that she had physically pushed Cathy Magowan out of the way of a photograph for her own political reasons. This was not true. Indeed, the newspaper did not run any evidence to suggest that this was true.

The newspaper ran a defence that the article meant that she had pushed “a politician” out of the way (which they

The defendant

The defendant

claimed was true, in relation to her placing her hands on the chest of Wyatt), but all to no avail as the jury found that the articles meant what Mirabella claimed and there was no truth defence to that allegation.

It was then a matter for Judge Macnamara to assess the damages. Mirabella asked for $300,000-$400,000 and the newspaper asked that it be less than $100,000, claiming among other matters, that Mirabella engaged in disreputable conduct by stating to Wyatt before the trial that “we’ve got to get our evidence right”. However His Honour found nothing untoward about that. The statement could have meant anything. The newspaper also claimed that the defamation was not particularly serious and at the low end of the scale.

The Judge referred to the extensive republication of the defamatory article and the grapevine effect. His Honour concluded that the article provided the platform from which the tweets could be hurled at Mirabella and that the defamation caused significant hurt to Mirabella’s reputation. She might have lost the election, but the award of $175,000 damages would have helped. As for the politics, there is always 2019….

 

 

 

 

 

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Channel Nine’s “disgraceful” story – $300,000 damages: Pahjua v TCN Channel Nine PL [2018] NSWSC 893

Sunil Pahuja migrated to Australia at 27, did a Masters in accounting and developed a business installing solar panels. He knew many people in the Indian community and was to become the perfect example of a person who was in the wrong place at the wrong time.

The wrong time was 6.30 on a weeknight. Channel Nine’s flagship show, “A Current Affair” ran a story on Pahuja in 2015, purporting to expose a “cruel immigration scam” that he was involved in. However, the story had such little relation to the truth of the evidence that Channel Nine had in its possession, that Justice McCallum described the conduct of the journalist involved as “disgraceful” and the story of Pahuja’s involvement in the story as something that the journalist had “clearly made it up”.

A Current Affair

A Current Affair

What happened was this. Pahuja was friends with a man who was boarding with him at the time, Satnam Singh. Singh engaged a lawyer, Mr Chand to make an application to the Migration Review Tribunal. Singh lost that application. He then approached a different migration agent, who he found on the internet: Mr Mofid Bebawy at Choice Migration. Singh engaged the new agent to try and get a 457 visa.

On 30 March 2015, Singh attended a meeting at the offices of Choice Migration and Pahuja came along with him. The evidence was that Pahuja had never met Bebawy before. There was no evidence that Pahuja had any previous dealings with Bebawy. At that meeting, Singh signed a contract for Bebawy to work on visa applications for himself and his wife for a fee of $16,000.

Singh rang Mr Chand (previous lawyer) and told him about the new agent. Chand asked Singh to come and see him, which he did with Pahuja. Chand secretly filmed the meeting and repeatedly directed the conversation to the topic of Bebawy. The recording was ultimately used by Channel Nine in its “cruel immigration story”.

One week later, Pahuja got a phone call from a lawyer who acted for Bebawy and asked him if he had made allegations about Bebawy to Channel Nine. Pahuja did not know what that was about. Fifteen minutes later, Channel Nine cameramen arrived at Pahuja’s door and confronted him with an allegation that he was taking a cut from Bebawy. The reporter invited Pahuja to have an interview to “clear the air”, which Pahuja agreed to.

The broadcast went to air on 28 April 2015 and the host started with this:

Now, a hidden camera investigation exposing a cruel immigration scam. Tonight, overseas born residents forced to pay thousands of dollars to dodgy agents in a bid to live and work in Australia and as Jesse Grayson reports, its big business.”

Only one agent was featured on the program, Bebawy. But he was not named and his face was pixelated. His lawyers had gotten wind of the story beforehand and tried to stop it airing. Pahuja, on the other hand, was named and his face was presented front and centre in connection with the allegation that the “dodgy agent” was charging up to $60,000 for a 457 visa.

Pahuja’s denials were not broadcast, even though the journalist, Mr Jesse Grayson invited him to participate in an interview. Pahuja claimed that the broadcast was unfairly edited.

The story was a collection of material, including the secret recording from Chand’s office, interviews with a workplace lawyer and another with the Assistant Minister for Immigration and Border Protection. The unequivocal impression of the broadcast was that Pahuja was part of the scam and acted as the dodgy agent’s “fixer”. Pahuja sued in defamation.

After the trial last year, the jury found that the broadcast carried a number of defamatory imputations, including that the plaintiff was knowingly involved in a cruel immigration scam in which overseas residents were forced to pay tens of thousands of dollars to dishonest immigration agents in order to live and work in Australia. Essentially, the imputations meant that Pahuja exploited vulnerable people for financial gain. He was presented as the villain in the broadcast. The jury also found that Channel Nine had not made out its defence of truth in respect of these imputations and the matter landed with Her Honour Justice McCallum to assess the damages.

Before its broadcast, Channel Nine were in possession of affidavits from Pahuja and Singh that, contrary to the impression of the broadcast, (that Singh was a victim of the scam perpetrated by Pahuja and Bebawy), in actual fact Singh and Pahuja were friends and Pahuja had never met or had anything to do with Bebawy at all.

Even though Channel Nine had that information, it went ahead with the broadcast, and while it pixelated Bebawy’s face and digitally altered his voice, it made no alterations at all regarding Pahuja’s identity. He was front and centre of the story.

While there was some evidence that Channel Nine had of impropriety by Bebawy, there was simply no evidence whatsoever that Pahuja was part of any scam. On the contrary, all the evidence that Channel Nine had was that Pahuja was Singh’s friend. At [50]: “The suggestion that Mr Pahuja was in cahoots with Mr Bebawy was a complete construct of the journalist’s making.”

Nevertheless, the journalist put this question to Pahuja in the broadcast: “so what do you say to allegations though that people say that you’re the guy that is the middle man here. That you bring the people to Mofid, you sit down to negotiate a price?”. The evidence established that the journalist had no basis for putting that question. No allegation had been reported to him that Pahuja was the middle man. His only source, Mr Chand, had clearly stated that Pahuja was Singh’s friend.

At [56], Her Honour noted: “Mr Grayson also said to Mr Pahuja, ‘We’re hearing that you do get a cut from Mofid for bringing him people’, and later suggested (falsely) that he had received that information from Mofid. He had not received any such information from Mr Bebawy or anyone. He clearly made it up.”

Her Honour concluded that the editing of the piece, to portray Pahuja as a middle man or “fixer” was grossly unfair. Mr Grayson’s interview of Pahuja otensibly to “clear the air” was “disgraceful” and the open presentation of Pahuja on the broadcast was unjustifiable. These were matters that substantially aggravated the damages. Also, Her Honour found that Channel Nine’s maintenance of truth defences on many aspects of the broadcast were also unjustified. In all, Her Honour concluded that it was a very serious defamation and assessed the damages at $300,000.

After this debacle, whether the journalist involved remains working for Channel Nine is unknown.

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Court of Appeal rules that Rebel Wilson’s damages not special: Bauer Media Pty Ltd v Wilson [2018] VSCA 154

The Victorian Court of Appeal has ruled that Rebel Wilson’s $4.5 million record damages verdict is no longer the record, rejecting her claim for special damages and cutting the figure down to $600,000. While this was a big win for Woman’s Day, the media might still have lost the war – this was because the Court of Appeal otherwise found that the cap for compensatory damages in Australia does not apply if a defendant aggravates the damages. As it stands, courts throughout Australia are essentially bound by this principle and the  media are exposed to this uncertainty in where any damages verdict might land.

The plaintiff

The plaintiff

After a 3-week trial in September last year, a jury found that Rebel Wilson was defamed by one print and seven online articles published by Woman’s Day in May 2015. The jury accepted that the imputations conveyed by the articles were essentially that Rebel was a serial liar who made up fantastic stories about herself so that she could make it in Hollywood. For those not versed in Hollywood stardom, Rebel Wilson is one of Australia’s most famous exports, having starred in a number of Hollywood movies, including Pitch Perfect. In May 2015, Pitch Perfect 2 was scheduled for release and Woman’s Day decided that it would be an appropriate time to publish a series of articles about Rebel and what a liar she was. Rebel sued Woman’s Day and the trial ran.

The jury emphatically found in Rebel’s favour. All of the magazine’s defences were rejected and it was then for Justice John Dixon to assess the damages. His Honour did so: $650,000 for compensatory damages (including aggravated damages) and approximately $3.9 million for special damages, caused as a result of Rebel’s claim that she lost movie opportunities for an 18-month period after publication. Woman’s Day appealed.

In the appeal, Woman’s Day focused on 3 matters: firstly, that the trial judge erred in assessing the level of aggravating conduct, secondly that the trial judge erred in interpreting s.35 of the Defamation Act to the effect that aggravating conduct by a defendant meant that the cap for damages would not apply and thirdly that the evidence did not support the special damages claim.

Aggravating conduct

In terms of the aggravating conduct, much of Woman’s Day’s aggravating conduct was accepted by it to have occurred. This included:

  • it failed to properly investigate the defamatory allegations before publishing,
  • it published imputations which it knew were false,
  • it published those allegations to maximise its commercial opportunities as part of a campaign to take down Rebel Wilson; and
  • it sent a series of insulting and harassing messages to Rebel Wilson and her family. Lovely.

However, it challenged other aspects of the aggravating conduct and the Court of Appeal found that its conduct in

One of the articles

One of the articles

running truth and triviality defences at trial and also seeking confidential financial information belonging to the plaintiff at trial were not aggravating circumstances and so the compensatory damages was reassessed at $600,000.

s.35 of the Defamation Act

While Rebel Wilson’s special damages claim was large, the big ticket item for defamation law is the application of the cap for damages for non-economic loss. Section 35 says this:

“(1)      Unless the court orders otherwise under subsection (2), the maximum amount of damages for non-economic loss that may be awarded in defamation is proceedings is $250,000 or any other amount adjusted in accordance with this section from time to time [relevantly 389,500 as at 1 July 2017] (the maximum damages amount) that is applicable at the time damages are awarded. 

(2)        A court may order a defendant in defamation proceedings to pay damages for non-economic loss that exceed the maximum damages amount applicable at the time if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages.”

Ever since the uniform defamation laws were enacted in Australia in 2005, the cap for damages had always been applied and had not been exceeded. For the first time, a Supreme Court judge found that section 35 imposed no constraint on a plaintiff’s entitlement to damages, if the defendant has engaged in conduct warranting an award of aggravated damages. Thus, Justice Dixon landed at $650,000.

Woman’s Day appealed and argued, among other matters, that the cap could only be exceeded by any amount of aggravated damages awarded, which ought to have been awarded separately. It argued that Justice Dixon should not have assessed the compensatory damages as a global sum.

However, the Court of Appeal agreed with Justice Dixon’s conclusion. It concluded that s.35 did not create an upper limit within a scale of damages, but simply acted as a cut-off. It then also concluded that s.35(2) did not require aggravated damages to be awarded separately and any finding of aggravated damages at all, would permit a court to make awards that exceed the cap. Thus, the Court of Appeal assessed damages at $600,000.

Special damages

This was Rebel’s glamour claim: $3.9 million for loss of movie roles. Woman’s Day argued that the evidence did not support the inferences that led to this award and did not support any claim for special loss at all. On this point, it won.

Rebel Pitch Perfect 3The Court of Appeal concluded that Justice Dixon erred in concluding that, on the balance of probabilities, Rebel Wilson showed that an opportunity to land Hollywood lead roles existed and had been lost. It also concluded that Justice Dixon erred in his conclusions, based on inferential reasoning that the grapevine effect caused a loss of opportunity in Hollywood.

The Court of Appeal referred to the following pieces of evidence that tended towards a conclusion that the publications complained of, either were not known about in Hollywood, or had no effect from their date of publication in May 2015 onwards:

  • On 7 July 2015, two movie executives from Universal Studios sent a letter to Rebel Wilson that enclosed a cheque for $1million for Pitch Perfect 2 and acclaimed her “incredible contribution” and stated that they looked forward to “continuing our collaboration”;
  • In 2015, Rebel made $1.45 million in advertising;
  • In 2016, Rebel made $1.82 million in advertising;
  • On 2 May 2016, Rebel appeared 3 times in The Little Mermaid, a successful family friendly show performed at the Hollywood Bowl and made $100,000;
  • In May 2016, Rebel starred in an English stage show that made her $400,000 in 8 weeks;
  • Rebel’s expert witness from Hollywood, Mr Principato, gave evidence which included:
    • He did not know about the articles complained of;
    • he referred to two Hollywood movie roles that she might have been appropriate for, not knowing that Rebel had actually rejected one of them;
    • He did not give evidence that the imputations complained of had any currency in Hollywood;
    • Rebel’s own agent, Ms Jackson, gave evidence, and she also did not know of the articles at the relevant time;
    • Rebel gave evidence that she had a publicity team of 7 people in Hollywood, yet there was no evidence from any person that they had heard of the articles or that the sting of the articles had gained any traction in Hollywood.

The Court of Appeal concluded that there was no causative link between the articles and any lost opportunity to land movie roles and there was insufficient evidence to support an inference that there had been a grapevine effect arising from the articles in Hollywood. Special damages claim – zero.

So Rebel still holds a judgment for $600,000, still being one of the highest in Victorian history, but that is not the end of it. She has already had papers filed in the High Court seeking special leave, a risky move given that the High Court will likely consider whether the interpretation of s.35 of the Defamation Act is correct. At worst for Rebel, her $600,000 will be reduced again, this time below the cap. Not all Hollywood stories have happy endings….

TO BE CONTINUED

 

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The Return of Trkulja: Episode IV – Trkulja v Google LLC [2018] HCA 25

The plaintiff

The plaintiff

The Trkulja defamation franchise is into its fourth instalment, with the latest victory against the Google Empire coming with a stirring outcome arising from Mr Trkulja’s debut appearance in the High Court.

Previously in Trkulja v Google:

  • in 2012, Trkulja won $200,000 damages against Google for publication of search results that linked him with the Melbourne criminal underworld;
  • That year, Trkulja also won $225,000 for a similar claim against Yahoo!;
  • In December 2012, Trkulja wrote to Google again and asked that it take down certain image results and autocomplete search predictions. For instance, Google published images of Trkulja alongside Melbourne criminal identities when people searched “Melbourne criminal underworld”. Further, when a person searched “Michael trk” on Google, up would come search predictions like “michael trkulja criminal”, “michael trkulja Melbourne crime” and “michael trkulja underworld”;
  • In January 2013, Google removed links to some websites and, without admission, it blocked certain autocomplete predictions and search queries relating to Mr Trkulja. It declined however, to remove the images of Mr Trkulja which appeared.
  • Subsequently, Trkulja sued Google again in the Victorian Supreme Court.

The first step was that Google immediately applied to set aside the proceeding on the basis that Trkulja had no reasonable prospects of success. The application came on before His Honour Justice McDonald in 2015. Google ran three arguments:

  1. It did not publish the matter complained of;
  2. The matters were not defamatory of Trkulja; and
  3. Google was entitled to immunity from suit for public policy reasons.

Justice McDonald rejected all of Google’s submissions and the application to strike out was dismissed.

However, fans of the Trkulja franchise will recall Episode III: The Google Empire Strikes Back. In that episode, Google appealed Justice McDonald’s decision to the Court of Appeal of the Supreme Court of Victoria, and three judges wrote a judgment where the appeal was allowed and Trkulja’s claim against Google was summarily dismissed.That appeared to spell the end of the Trkulja.

The defendant was content with the outcome of Episode III

The defendant was content with the outcome of Episode III

Google was essentially successful because the Court of Appeal concluded that the images of Mr Trkulja could not be defamatory of him, being thumbnail photos of him alongside some Melbourne criminals, but also intermingled with 15 pages of photos of other people, including: actors, politicians, lawyers and a tram. The Court of Appeal concluded that no reasonable user of the internet would understand that publication of those images to mean that Mr Trkulja was a “hardened and serious criminal in Melbourne”. It also concluded that Google’s autocomplete results themselves could not convey defamatory meanings. The Google Empire succeeded.

But Trkulja was not finished. He appealed to the High Court. Episode IV. Five judges of the High Court heard the application and have unanimously agreed that the Court of Appeal was wrong. Very wrong. And too long and complicated [36], and “unacceptable” [52]. As for Justice McDonald at first instance, he was completely right. Essentially:

  • It was strongly arguable that Google’s intentional participation in the communication of the allegedly defamatory search results relating to Mr Trkulja to users of the Google search engine supported a finding that Google published the allegedly defamatory results. The High Court held that was correct at [38];
  • The inclusion of Mr Trkulja’s image in the search results for “Melbourne criminal” could also be defamatory, regardless that it was bundled in with many other images. That was a matter for trial; and
  • Google should not be immune from suit as a matter of public interest.

The High Court dealt with the Court of Appeal judgment swiftly and brutally. The five High Court justices unanimously made the following comments:

  • “… And contrary to the Court of Appeal’s approach, there can be no certainty as to the nature and extent of Google’s involvement in the compilation and publication of its search engine results until after discovery…. Given the nature of this proceeding, there should have been no thought of summary determination of issues relating to publication or possible defences, at least until after discovery, and possibly at all.” [39]
  • the test is: “whether any of the search results complained of are capable of conveying any of the defamatory imputations alleged.” Ultimately, that is a matter for trial. Not a matter for summary disposition.
  • The search results were capable of conveying the meanings pleaded by Trkulja. As set out at [60]: “And prima facie, the most obvious, logical connection between the terms of the search and the response is that those persons whose images or names appear in the response, under headings such as ‘melbourne criminal underworld photos’, ‘melbourne underworld crime’ and ‘melbourne underworld killings’, or at least some of them, are criminals or members of the Melbourne criminal underworld.”

Google.AustraliaThe High Court concluded that even if the list of persons potentially defamed by 15 pages of image search results might be large and diverse (as relied upon by the Court of Appeal to justify its conclusions), that was not the point. The conclusion was still sound. It is arguable and that is a matter for trial.

In one final fling, perhaps as an act of desperation, Google relied on at least one other search result for Mr Trkulja. At [65], the High Court referred to this: “on page three, a ‘snippet’ of a webpage which, under the heading, ‘Trkulja v Yahoo! – Defamation Watch” …… well that was never going to work.

All in all, this is the first time the High Court has considered internet publication since 2001 in Gutnick v Dow Jones. The important conclusions to take from the judgment appear to be these:

  • the High Court has upheld Justice McDonald’s decision that it is strongly arguable that Google is a publisher of its search engine results. This is also an affirmation of the decision by Justice Beach in Trkulja’s first win against Google in 2012. Ultimately, it is a matter for trial and depending on what type of defences Google might plead, it could also be a matter for discovery of documentation by Google of its processes as to publication;
  • the High Court has held conclusively that Google’s search results (whether text or image) and autocomplete search predictions, can arguably be defamatory and are matters for trial. The fact that there are many other search results (particularly images) is beside the point.

Both of these are likely to have enormous consequences for Google and other search engines in Australia. Any summary judgment application brought by Google moving forward would appear likely to fail. It will also be exposed to significant discovery obligations if it chooses to put publication in issue, or depending what other type of defence it might raise.

Meanwhile, like all good movie franchises, they end with a victory, but also with a short teaser for the next episode that is already in the works. Nothing is ever resolved. Mr Trkulja will return to the Supreme Court of Victoria for another trial next year in Episode V, and this time, Disney might want to buy the rights….

 

 

 

 

 

 

 

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Rebel Wilson’s Perfect Defamation Record: Wilson v Bauer Media Pty Ltd & Anor [2017] VSC 521

The plaintiff

The plaintiff

Rebel Wilson, Hollywood starlet and Australian heroine has added another chapter to her success, this time in real life Australian court. Her defamation victory is by far the largest victory in the history of Australian defamation law, and her lesson to Woman’s Day a humbling one: $4,567,472 worth humbling (plus interest and costs).

The Hollywood actress sued in the Victorian Supreme Court over a number of articles from 18-20 May 2015: one was in a printed edition of Woman’s Day (circulation 1.5 million) and seven further articles published online. The primary sting from these articles was that Rebel Wilson was a “serial liar” who invented fantastic stories about herself to make it in Hollywood and is so untrustworthy that nothing she says about herself can be taken to be true unless independently corroborated.

Defences of truth, qualified privilege and triviality all failed and a jury found that each of the articles were defamatory of Ms Wilson in June this year. It was left to Justice Dixon to assess the damages and hear evidence on that question.

His Honour’s judgment was unprecedented. It broke all records and in some places it read like an ethics piece on how journalists should not act. Publishing articles without a proper basis, with malice, publishing for the sole purpose of creating profits, lack of bona fides in the course of litigation …. all of it. Justice Dixon delivered not just a slap in the face to the publishers of Woman’s Day, but more like a politely worded decapitation. This was a verdict that will be remembered for the ages. What happened was this.

In 2012, around the time of the release of Pitch Perfect, an American box office hit that starred Ms Wilson as “Fat Amy”, a former classmate of hers posted a comment about her on the Woman’s Day website. The classmate wrote that “everything [Ms Wilson] has said about her life is a lie… what a lier (sic) she has become.”

A journalist with the defendants, Ms Nementzik reached out to this “source” in October 2012. The next day, the source asked for payment for information. Nothing progressed at that time. About a year passed and in October 2013, a Woman’s Day’s editor asked Ms Nementzik to reach out to the source again, which she did. She stated to the source that:

so many people are saying she’s completely ‘faking’ her past. So my editor wanted me to chat to you and just ask for a list of things she’s lied about… You can remain completely anonymous of course and we should be able to offer money x.”

Under cross-examination, Ms Nemenztik agreed that no-one had in fact told her that Wilson was faking her past.

The source sent a list of matters she claimed that Ms Wilson lied about. Much of it was incorrect, including claims about Ms Wilson’s name, age, birth date, where she grew up and her parents’ occupations. The next day, the source sent another email with more alleged lies. These were also found to be untrue. In any event, the source rejected an offer of $500 and said she was “looking for maximum payment” and a guarantee that her details would never be disclosed, including if Ms Wilson made a complaint.

Ms Nementzik prepared a draft article entitled “Rebel Wilson’s Big Fat Lies” which was a compilation of the two emails sent from the source. The editors stated that they loved it and agreed to pay the source $3,000. However a few days later, Woman’s Day got nervous and Ms Nementzik emailed the source and stated that they had sat with lawyers and the story could not go ahead because it was too problematic. Under cross-examination, Ms Nementzik agreed that the source was considered not reliable. That was November 2013.

Pitch Perfect 2 was due to open on 15 May 2015, again starring Ms Wilson. Woman’s Day thought that would be a good time to reprise the material about her, including much of the information that was previously considered unreliable. An article was prepared by Ms Nementzik: “Rebel Wilson’s Big Lies”. It was commendable that the word “Fat” had been removed from the proposed headline. Anyway, the editors thought this was “Amazing” and “So fun!!!”, although the headline was changed to “Just who is the real Rebel Wilson?” The article was published in the 15 May 2015 edition of Woman’s Day and then online.

Ms Nementzik’s research for the article consisted of looking for information on the internet and speaking only to the

The first article

The first article

source. She did not speak to Ms Wilson, anyone connected to her, any other students from her high school or the school itself. Justice Dixon was satisfied that neither she, nor any of the editors at Woman’s Day actually believed that Ms Wilson was in fact, a serial liar. Ms Newmentzik had seen material on the internet which showed Ms Wilson’s real age.

At trial, Woman’s Day did not call anyone from the editorial process to explain the decision to publish. His Honour found that this fact alone gravely aggravated the damages.

The next article was found to carry an imputation that Ms Wilson was so untrustworthy that nothing she says about herself could be taken to be true unless independently corroborated. The article was written by a different person, Ms Caroline Overington and was headlined “Separating fact from fiction: Will the real Rebel Wilson please stand up”.

This article referred to a previous interview with Ms Wilson from October 2014 where she stated, among many other matters, that her father had recently died. Ms Overington ended the May 2015 article with this:

I didn’t ask for a death certificate. I would like to live in a world where I wouldn’t have to ask for one.”

Nice. Then after that article was uploaded online, the judgment states that Ms Overington sent a series of insulting and harassing messages to members of Ms Wilson’s family, her American agent and the Disney Corporation. His Honour found that this also aggravated the damages.

The further articles appeared online over the next few days and set in train an “international media firestorm” for Ms Wilson. She claimed that the publications damaged her career. She claimed general damages and also made a claim for special damages for loss of earnings in an 18 month period from May 2015 until the end of 2016, as she was not offered lead roles in movies in that period, just after Pitch Perfect 2 was released (which happened to be hugely successful). She claimed $6.771 million in relation to new screen roles less income she earnt in the period, having taken on less remunerative work ($877,138).

General damages

Significantly and ground-breakingly, Justice Dixon found that under the terms of the Defamation Act 2005 (Vic), the cap imposed for damages for non-economic loss ($389,500) did not apply if a plaintiff was able to show that the publisher engaged in conduct warranting an award of aggravated damages. This is the first time this interpretation of the Act has ever been applied. It is certain to cause havoc to all publishers and glee for plaintiff defamation lawyers.

Anyhow, His Honour found that the defendants’ conduct aggravated the injury to Ms Wilson’s feelings and aggravated injury to her reputation in all manners of ways. The defendants ran defences of truth, triviality and refused to apologise. When the defendants received the initial letter of demand from Ms Wilson, the defendants replied that they would not apologise and would prove that Ms Wilson was a dishonest person. In court, Ms Overington refused to apologise for her statement about the death certificate in relation to Ms Wilson’s father.

His Honour was satisfied that the defendants’ conduct in pursuing the defences was lacking in bona fides. His Honour found that the defendants pressed defences when it could not have been responsibly advised to do so and were motivated to ensure that Ms Wilson was worried all the way to verdict by the possibility of an adverse outcome. Ultimately, His Honour found that it would be difficult to imagine conduct that could aggravate damages to a greater extent.

His Honour was satisfied that Ms Wilson was honest and still raw from the attack on her. It created a really tough time for her and her family. The imputations were very serious and only a substantial sum of damages would be adequate. Further, Ms Wilson gave evidence that the conduct of the defendants in the trial was “kind of like they’re getting the knife and just sticking it further into me”, “just devastating” to her and “insulting”.

His Honour found that the defendants had “launched a calculated, baseless and unjustifiable public attack” on Ms Wilson, who is a hardworking, authentic Australian born actress. The defendants had branded her as a serial liar who had fabricated almost every aspect of her back story from her name, age, childhood and upbringing in order to make it in Hollywood. “She was held up to be a phony and a fake”.

Ms Wilson was accepted to have “an extremely high reputation as an honest person, who had made it in Hollywood through sheer hard work and tireless dedication to pursuing opportunities to make and maintain a reputation as a quality actress.” His Honour continued “Ms Wilson’s reputation as an authentic, candid and honest down-to-earth Australian, was key to her identity and appeal and her reputation with moviegoers was central to her capacity to win lead or co-lead acting roles in which she would carry the movie.”

The article written by Ms Overington got a special mention. It conveyed a meaning that Wilson was so untrustworthy that nothing she says about herself can be taken to be true unless it has been independently corroborated. That was very serious. His Honour found that the article was written without a legitimate basis and made with malice. It was written as part of a campaign against Ms Wilson.

For general damages, taking account that the cap did not apply since the damages had been aggravated by the defendants, His Honour ordered damages of $650,000 for Ms Wilson.

Special damages

Ms Wilson put her special damages case as a claim for loss of an opportunity. To support the claim she led evidence that after the publications, she was barely offered and did not secure a lead or co-lead role in any new feature film or television series, which would have been expected on the back of Pitch Perfect 2. By the beginning of 2017 she was again working in film, but her claim only related to the period from mid May 2015 to the end of 2016.

Her expert witness was Peter Principato, an LA-based talent manager. He stated that following the release of Pitch Perfect 2, Ms Wilson was highly likely to have received several offers from studios as a lead or co-lead actor in the relevant period. She could have commanded a fee of USD$5 – 6 million for those.

Ms Wilson also called Sharon Jackson, who worked for the largest talent agency in the world and also worked for Ms Wilson. She spoke to people on Ms Wilson’s behalf every day to try and get work for her. When asked why Ms Wilson was not getting offers after the release of Pitch Perfect 2, her evidence was that it was a real mystery and nonsensical.

His Honour was ultimately satisfied that in the 18 month period:

  • there was an opportunity for Ms Wilson to earn income by acting in feature films in the USA that was enabled or enhanced by the success of Pitch Perfect 2;
  • that opportunity was lost or detrimentally effected;
  • the trajectory of Ms Wilson’s career to that point had abruptly stopped;
  • the articles published by the defendants formed the roots of a grapevine that spread the defamatory sting of the articles to the USA. In that respect, Ms Wilson heard reference to the allegations on radio in New York and saw it on a talk show on CBS, the biggest network in the USA;
  • the extent of communication of the defamatory sting was very substantial. It created an “international media firestorm” and the sting was a “toxic poison”.
  • The fact that Ms Wilson was not offered any lead or co-lead roles following the release of Pitch Perfect 2 was “otherwise inexplicable”.
Happily ever after....

Happily ever after….

Finally, His Honour was prepared to make an inference from the evidence that the publications were a cause of the loss, and a cause of the fact that Ms Wilson was not offered any lead or co-lead roles comparable to her roles in Pitch Perfect and Pitch Perfect 2 in that period.

In terms of valuing the lost chance, His Honour was satisfied that the plaintiff lost lead or co-lead roles in the period and she would have earned USD$5million each. His Honour then concluded that it should be valued at 3 times that figure, which was USD$15 million, but that the figure should be discounted to take account of a whole range of variables, such as whether a film would have been completed, tax, overheads and general uncertainties. His Honour discounted the gross value of the lost opportunity by 80%, and so assessed Ms Wilson’s special damages at USD$3million, which became AU$3,917,472.

In all, damages of $4,567,472. All defamation records smashed, Ms Wilson will no doubt ride off into the sunset, the sniff of success in the air, a great new idea for a new courtroom drama possibly to be played out on the big screen awaits….

THE END

 

 

 

 

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Tweed Shire Mayor gets revenge threefold – Milne v Ell [2017] NSWSC 555

Mr Ell, defendant in 2016, plaintiff in 2014.

Mr Ell, defendant in 2017, plaintiff in 2014.

Property developer, William Robert Ell sued Tweed Shire Councillor, Katie Milne in defamation in 2014. He sued over a letter to the editor which Ms Milne had written about a contentious building development conducted by Mr Ell. While Mr Ell did not attend the trial, he won the case and was awarded damages of $15,000 plus costs. The decision was handed down on 7 March 2014.

You would think that one defamation trial was enough for the parties, but no, there is more. After his win, Mr Ell was contacted by a journalist from the Gold Coast Bulletin. He told the journalist that Ms Milne was not a “fit and proper person to be a councillor” and that he also hoped that the judgment and costs that she had to pay would bankrupt her. On 13 March, the Gold Coast Bulletin played down the result in typical Gold Coast fashion: “KATIE LOSES BILLIONAIRE BOB BATTLE ‘I HOPE THIS SENDS HER BROKE” on the front page.

Ms Milne sued Ell for the statement to the journalist and also for the article that appeared in the paper. She also sued the Gold Coast Bulletin, although she ultimately settled with it on the basis that it published an apology and paid some costs.

The trial ran and Ms Milne gave evidence of how, as a member of the Tweed Shire Council, she got the record number of votes that had ever been recorded in the Shire and since the Gold Coast Bulletin article, she had been elected Mayor. She pleaded that the article meant that she was “not a fit and proper person to be a councillor”, which Justice Rothman held was carried by the article and was defamatory of her.

Mr Ell relied on the defence of honest opinion or fair comment. His Honour stated that the imputation could be either one of fact or opinion, depending on the context. The context was that the imputation was not based on her conduct in defaming Mr Ell, but was a statement of fact to justify the indirect consequence of the previous defamation case and her inability to meet the costs of those proceedings and the damages. At [54], His Honour then concluded it was a statement of fact. This must have been a close run thing.His Honour then concluded that Mr Ell was liable for the republication in the Gold Coast Bulletin because it was the

Katie Milne, plaintiff in 2017, defendant in 2014.

Katie Milne, plaintiff in 2017, defendant in 2014.

natural and probable consequence of him speaking to the journalist. No issue there. In assessing damages, His Honour was at pains to make the point that the earlier defamation proceeding was irrelevant to that issue, but there was no evidence that Ms Milne had been shunned or avoided and indeed since the publication, she had become Mayor. In all though, His Honour noted that it was hard to escape the suspicion that the case was a “tit for tat” exercise [83], but that too was not relevant. After considering all of the principles, His Honour settled on a figure for damages: $45,000 plus costs.

No doubt the Gold Coast journalists contacted Ms Milne for her reaction…..

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Melbourne defamation lawyer loses to Google: Defteros v Google LLC & Google Australia Pty Ltd [2017] VSC 158

Google Australia Pty Ltd – it looks like Google, smells like Google and it very much tries to act like it is not Google. For several years there have been several people who have all tried to sue Google Australia or Google New Zealand or Google UK, perhaps trying to get a local defendant when it is Google LLC in America that produces the search results which they complain about. Consistently, courts have found that those plaintiffs have over-reached. Consistently, those claims have been struck out on a summary basis.

Google Australia PL

Google Australia PL

Melbourne lawyer George Defteros believed his claim was different. Thankfully, he also sued Google LLC for the publication of search results for his name, and not just Google Australia, since the latter claim was, as His Honour Justice Dixon concluded – hopeless.

The plaintiff sued the two Google entities as a result of the publication of search results on the Google website. These included a hyperlink to an article that was written in 2004 entitled “Underworld loses valuable friend at court”, that referred to him.

After he sued, Google Australia wrote to the plaintiff and stated that the case against the Australian entity was hopeless. It asked that the plaintiff agree to discontinue that claim and it would agree that there be no orders as to costs. In hindsight, a good offer. The plaintiff rejected it and Google Australia applied for summary judgment.

The plaintiff alleged there were a number of different arguments, which made his case different from every other case before it in Australia and around the world. He argued that Google Australia participated in the business of Google USA and therefore was a publisher of search results. Creative.  The evidence, at its highest, showed that Google Australia provided sales and marketing support to Google USA, it provided advertising services, it provided research and it received payment from Google USA for those services.

However, this had nothing to do with the search results on which the plaintiff sued. His Honour concluded that this was not participation in the publication at all. The contention that Google Australia was a publisher as a result of those matters was “fanciful”. His Honour noted that there would be many aspects of the business of a publisher that were unrelated to the actions of communication or publication. In the case of Google, there were presumably thousands of companies participating in its business in advertising, marketing, assistance, revenue collection and so on. None of those would be publishers, such an outcome would be absurd.

As an example, His Honour noted that if the plaintiff was right, then if a vendor were to sell a car in a newspaper, and in an unrelated article in that edition, a person was defamed, the car vendor, like the newspaper employee who sold the advertising space, would have arguably participated in the business and would arguably be publishers. Absurd.

So the case against Google Australia was struck out, with an order that the plaintiff pay its costs on an indemnity basis. It may have only been a battle in a broader war, but having to pay for Google’s QC and its other lawyers on this application …. not a good start for this plaintiff at all.

 

 

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Trkulja III not as good as the originals: Google Inc v Trkulja [2016] VSCA 333

By 2008, Indiana Jones had fought, flown and fallen through several great adventures: all against great odds, in the face of powerful empires and despite significant hurdles, he ploughed on… ultimately to victory. Then came Indiana Jones and the Crystal Skull. One movie too many.

In 2012, Michael Trkulja famously scored defamation victories against Yahoo! and Google for publishing search results arising from searches of his name on their websites. Those results wrongly linked him to the Melbourne criminal underworld. Trkulja won $225,000 and $200,000 against these giants respectively.  For the internet giants, the Victorian Supreme Court really was the Temple of Doom.

Like Dr Jones, Trkulja felt he had another big win in him. He sued Google again. But like Dr Jones at the box office, the Court of Appeal concluded that this was just one adventure too many.

This time, Trkulja’s statement of claim asserted that he was defamed by:

  1. Compilations of thumbnail images returned by Google’s search engine in response to certain terms searched, usually related to the Melbourne criminal underworld (the Images Matter);
  2. Search results returned by the Google search engine to a range of searches that also involved the Melbourne criminal underworld (the Web Matter); and
  3. Autocomplete predictions that appeared at different stages of Trkulja’s name. Those predictions also involved the Melbourne criminal underworld.

Trkulja essentially claimed that these search results/ publications were defamatory of him because they carried imputations including that he was:

  • A hardened and serious criminal in Melbourne;
  • An associate of notorious criminals such as Andrew Veniamin, Carl Williams, Tony Mokbel; and
  • Such a significant figure in the Melbourne criminal underworld that events involving him are recorded on a website that chronicles crime in the Melbourne criminal underworld.
Victorian Supreme Court of Appeal

Victorian Supreme Court of Appeal

Earlier, Google had unsuccessfully applied to the Trial Division to have Trkulja’s case against it struck out. At that stage, Justice McDonald dismissed the application [2015] VSC 635.

Not to be denied, Google appealed. To win, it had to persuade the Court of Appeal that Trkulja had no real prospect of success.  It was a significant obstacle, but one that it ultimately met.

Google ran three arguments: firstly, that as a matter of law, it could not be held to have published the search results that Trkulja sued on, secondly that in any event, those search results were not defamatory of Trkulja and thirdly, that a search engine provider should be immune from a proceeding such as this. The last of these arguments was very ambitious and dismissed very quickly by the court. The first two arguments however, were dealt with in great detail and ultimately in Google’s favour.

The Images matter comprised image search results from the Google search engine. Those results were attached to the statement of claim and ran for 20 pages, mostly comprising thumbnail pictures. The search terms were a variety of terms that included Melbourne criminal underworld and variations to that theme. Of the many images displayed, an image of Trkulja was included, alongside many others, including specific Melbourne underworld figures.

However, the pictures also included a raft of apparently random people: the Chief Commissioner of

Marlon Brando

Marlon Brando

Police, a barrister, a solicitor, a murder victim, a journalist, Marlon Brando, earlier reports of other defamation proceedings instituted by Trkulja, the St Kilda pier and a Melbourne tram. Trkulja claimed that the search terms themselves, taken together with the thumbnail photos of himself alongside Melbourne underworld criminals, were defamatory of him. Justice McDonald had originally concluded that this was arguable.

As for the Web Matter, Trkulja’s statement of claim referred to a number of Google autocomplete predictions, if a person searched Trkulja’s name and a range of Google search results for terms like “Melbourne underworld criminals” and the like. Trkulja claimed that all of these Google results, including the autocomplete predictions, without more, were defamatory of him.

Trkulja gave notice of these complaints to Google on 3 December 2012 and asked Google to take them down. Notice is normally very important, because in previous cases, in order to establish publication, the plaintiff had argued that once Google received notice, if it did not remove the material within a reasonable time, it became a primary publisher of the material complained of.

Justice McDonald found that Trkulja had arguably been defamed and that it was a matter for trial.

The crux of Google’s appeal were its contentions that it could not be held to be a publisher of the matter complained of, and that Trkulja had no prospect of proving that the matter was defamatory of him.

Is Google a publisher of its search results?

The appellant

The appellant

Addressing publication at common law, the Court of Appeal laboured through its history. The critical difference was between a primary publisher and a secondary publisher. The Court noted that even if a person did not take part in the original chain of distribution, a person could still be held to be a primary publisher of material from the date when they were taken to have authorized or acquiesced in the earlier publication of that material by another [112]. This normally happened because the publisher was held to have acquiesced, ratified or taken responsibility for the publication. To establish this, a plaintiff normally had to show that the publisher had notice of the matter complained of, had the authority to remove that matter and did not do so.

The main example was the Byrne v Deane case when a letter was stuck to a noticeboard belonging to a golf club and officeholders at the golf club were sued as publishers because they knew about the letter being up, they had the power to remove it and they did not.

This was different to situations where a person intendedly, but unwittingly, distributed material within which defamatory matter appeared. In those instances, a person could be described as a secondary or subordinate publisher [113].  For a secondary publisher, it seemed that notice of the publication took less of a role and those publishers often relied on an innocent dissemination defence.

In this case, Trkulja ran the argument that Google was a primary publisher and that was all. That was critical. He did not argue that Google was a secondary publisher [225].

The Court of Appeal analysed many decisions relating to defamation claims brought against search engines, blogging sites, Facebook sites and Youtube sites, and noted that claims against site operators are to be treated differently to cases against search engines [285]. The question remained whether Google was a publisher of its search results. The Court concluded that the role of the search engine was not as a “passive instrument” [342] and at [348]-[349]:

[348] On first principles, we consider that a search engine, when it publishes search results in response to a user’s enquiry, should be accounted as a publisher of those results – and in this we include autocomplete predictions. It is a participant in a chain of distribution of material.”

[349] We also consider that a search engine should be accounted a secondary publisher….”

In all, the opinion of the Court was that Google was a secondary publisher of the search results and could avail itself of the innocent dissemination defence, at least before it was notified of the material and arguably after that too. It was not a primary publisher [357].

In this matter, the claim by Trkulja did not allege that Google was a secondary publisher, which the Court considered would have been arguable [370]. Trkulja only argued primary publication, and the Court concluded that this was not arguable. This meant that the way that Trkulja had put his case was not arguable and on that basis alone, the case ought to be dismissed.

Could the Images Matter or autocomplete predictions be defamatory?

Regardless of the Court’s conclusions on publication, these ultimately did not matter because the Court concluded that, in any event, the publications complained about were not capable of being defamatory [372].

The Court concluded that in determining meaning arising from the internet, the question must be determined by reference to the understanding of an ordinary reasonable user of a search engine such as Google [390].

On that basis, Trkulja would have no prospect of establishing that the Images matter conveyed any of the defamatory meanings asserted. Twenty pages of random images meant that the reader would not understand them in the way the plaintiff claimed. The plaintiff’s picture was simply one within a random compilation of images [400]. A reasonable user would be aware of the unpredictable results generated by an image search.

The Court concluded that the user of the internet, in context, would understand a disconnect between the images and the search terms and a repeat user would understand that the search results in their entirety did not reflect the meaning of the inputted words considered as a phrase [151].

The Court also concluded that autocomplete predictions could not be understood in a defamatory way [393], they are simply a collection of words that had been entered by previous searches.  Further, the other material sued upon were simply references to Trkulja’s previous defamation successes and the Court did not understand those to be defamatory. Overall, the matter sued on was incapable of being defamatory [412] – the case was dismissed.

So when the dust settles on all of this, unless Mr Trkulja seeks and obtains leave from the High Court, it looks like it might be his last case against an internet giant. Although one never knows. Indiana Jones 5 is apparently set for the screens in 2019…..

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Strip club owner is no brothel madam: Hardie v Herald & Weekly Times [2016] VSCA 103

The plaintiff, Ms Raelene Hardie, was a part owner and manager of a strip club in rural Victoria called “Club Rawhide”. On 16 May 2013, the Herald Sun ran an article written by Andrew Rule, a journalist, on its front page and on page 4.

The plaintiff's club

The plaintiff’s club

The article related to a story that Victoria Police were or ought to have been investigating corrupt or improper relationships between police officers and outlaw motorcycle gangs in the area.

Ms Hardie complained that the article portrayed that her strip club was a place where the outlaw motorcycle gangs fought and where they dealt with police. The article included these snippets:

  • Not just any outlaws – The Outlaws, one of the oldest ‘one percenter’ biker clubs around. They have two local chapters – one in Shepparton and one across the river at Kyabram. The whisper is these bands of brothers disagree on the issue of manufacturing and selling drugs.
  • They certainly have no objections to the local strip joint, Club Rawhide, set up in an industrial building next to a car yard overlooking the railway line.
  • Members of both groups are regulars at a raunchy strip venue, named Club Rawhide, in an industrial estate that’s walking distance from Shepparton police station and two popular hotels;
  • Of course, its good that police arrested the bikies and brawlers so efficiently at Club Rawhide. Madam Black Mercedes, who runs the place, will be grateful.
  • The Outlaws and a few country police officers seem to have a healthy mutual respect. Locals suggest Rawhide is a convenient common ground for the two groups to unwind after a hard day at the office. As drinkers do the world over, they probably talk shop and swap business cards and phone numbers…..
  • Whether Eagles dare wreck the chummy Club Rawhide ambience is yet to be seen.

There was no specific reference in the article to Ms Hardie, and only a handful of references to Club Rawhide. The plaintiff was simply referred to once as “Madam Black Mercedes”.

Ms Hardie was very upset by the article and rang the journalist that day to complain. They had a conversation where apparently, he agreed to apologise. During the conversation Ms Hardie strenuously denied that the Club was a brothel and was, among other matters, very hurt that the article had referred to her as a “Madam”.

The next day, Mr Rule went onto a radio breakfast show and apparently “apologised” as per their agreement. The transcript (EM, LD and MM were the radio presenters) included this:

RULE: I’ve got another apology, from Madam Rawhide.

EM:     We’ve got a second edition, Madam Rawhide, ok…

LD:      That’s the northern town that Andrew was on the front page of the paper talking about.

ALL:     It’s a strip club.

RULE: It’s a strip club – it’s a respectable strip club….

The radio breakfast team

The radio breakfast team

….

EM:     Do you do anything other than apologise for stuff you say in your articles?

RULE: Not much….

[Laughter]…

RULE: I had a call yesterday from the proprietor of Club Rawhide, who is a lady….. And she was referred to in the story as “Madam Black Mercedes”….. Madam Black Mercedes has called and she said: [in a growly voice]; ‘I’m not um, Madam Black Mercedes’. And she said ‘I’m not a madam’. And I said ‘M’amm, I meant that in a most respectful way, as people do when they talk about the Queen. In no other connotation’. So she swallowed that but she’s not that happy….

[Stifled laughter]….

EM:     As a professional communicator, you’re having trouble getting your meanings in your writings across at the moment aren’t you?

RULE: Well I am or I aren’t. I’m not sure Ed, maybe I’m getting them through too well. So first things was the Madam bit and we sorted that out and she said, as for Black Mercedes, I used to have a Black Mercedes, and then she explained to me that she no longer does. So I’m here to apologise about that, to the proprietor of Club Rawhide, which is a family friendly strip venue…

[Laughter]…

So he not only repeated the allegation that the plaintiff was a Madam, but he also made more of a joke of her. This may have made good radio, but as for court: no-one likes a smartaleck.

Ms Hardie sued on the newspaper article and the radio broadcast, although she did not sue the radio station, only Mr Rule for his words. She alleged that these imputations arose:

  1. The plaintiff runs a venue that is regularly attended by members of an outlaw motorcycle gang;
  2. The plaintiff runs a venue in which police give secret tip-offs to members of outlaw motorcycle gangs that hinder police investigations and frustrate search warrants;
  3. The plaintiff is a brothel Madam;
  4. The plaintiff runs a brothel at Club Rawhide in Shepparton.

At trial in July 2015, the trial judge found that the articles conveyed imputations 1 and 2, but not the brothel imputations in 3 and 4. Justice Whelan held that imputation 1 was true, but that imputation 2 was defamatory and not true. Win for Ms Hardie.

As for the radio broadcast, the trial judge found that none of the imputations were conveyed. In assessing damages, the trial judge awarded $90,000 damages.

So Ms Hardie appealed. The media cross-appealed and argued that none of the imputations were conveyed.

Firstly, the Court of Appeal found that imputation 2 was defamatory of Ms Hardie and that the trial judge was not in error there. It was defamatory simply because of what was said, even if it did not suggest a state or condition that was attributed to Ms Hardie personally. Strike one for the media.

The Court indicated that it would not have re-assessed the damages that the trial judge awarded in respect of that imputation and kept the damages at that stage to $90,000. However, the Court then went on to consider whether the article and broadcast meant that the plaintiff ran a brothel (which the trial judge had rejected).

In that respect, the three appeal judges found that the article did convey imputations 3 and 4. They found that the reference to Club Rawhide as a “raunchy strip venue…. In an industrial estate” and the description of Ms Hardie as Madam Black Mercedes would have conveyed one meaning to the ordinary reasonable person: namely that Ms Hardie was a brothel madam. Strike two for the media.

Then the Court of Appeal turned to the radio broadcast. This was where the media’s problems exacerbated. The Court of Appeal found that Mr Rule:

  • Was disrespectful and called Ms Hardie “Madam Rawhide” knowing of her complaint about the use of the term “Madam”;
  • The journalist, second defendant

    The journalist, second defendant

    Stated that Ms Hardie “swallowed” his explanation for calling her Madam Black Mercedes, meaning that his explanation was false and that her concern that it meant she ran a brothel, was true;

  • Stated that he was getting his meanings across too well, also meaning that Ms Hardie was right when she told him the article meant he was referring to her as a brothel Madam;
  • Basically informed the listeners that everything he had said about the situation was false when he finally referred to Club Rawhide as a “family friendly strip venue”, which was greeted with laughter.

So the Court of Appeal found that imputation 3 was conveyed and the trial judge’s findings there were overturned. Imputation 4 was largely the same. It then became necessary to re-assess the damages. The Court of Appeal found that Mr Rule’s conduct was unsatisfactory and this was mostly apparent during the radio broadcast:

If there had been any doubt about what the second respondent in fact conveyed to the ordinary reader about the applicant in the articles, that doubt was dispelled during the course of the radio interview. The second respondent had agreed to make an apology with respect to the description of the applicant as Madam Black Mercedes. Instead, he participated in a jocular session which a reasonable listener would plainly have understood was asserting that the applicant was a brothel madam….”

Strike three: media is out.

While the Court of Appeal did not make a finding for aggravated damages, it concluded that the imputations were seriously defamatory and the newspaper article remained online for more than two years after the article. For the articles, Ms Hardie won $150,000 and for the radio broadcast, a further $100,000. A big advancement on the $90,000 which she won at trial.

As for the journalist, the moral of the story can only be this: if an apology is greeted with laughter, that is not a good thing …

 

 

 

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