Cronulla’s legal advice on ASADA kept confidential: Cronulla-Sutherland District Rugby League Football Club Ltd v Nationwide News Pty Ltd [2013] NSWSC 494

The biggest news in Australian sport this year has been the investigation by the Australian Crime Commission and the Australian Sports Anti-Doping Authority (ASADA) into the alleged use by athletes and members of sporting teams of peptides and similar so-called alleged performance enhancing products.

Cronulla Sharks

Cronulla Sharks

While players from the Essendon Football Club in the AFL have recently been interviewed by ASADA, in terms of the National Rugby League, the club that seems to be most in the spotlight is the Cronulla Sharks. The Club retained a former judge of the Industrial Relations Commission, the Honourable Dr Tricia Kavanagh to conduct an inquiry in relation to its team. Dr Kavanagh provided a report, and Justice Fein indicated that it was really just a chronology with an accompanying summary.

Anyway, on 27 February 2013, the Club’s solicitor, Mr Darren Kane gave a written advice and on 6 March 2013, another advice was given by Mr Allan Sullivan QC.

The Club claimed that the defendants (the publisher of the Daily Telegraph and a number of its journalists) published material from the Kane Advice, particularly in 13 items on 26-27 April, and that they indicated that they intended to publish future material from those advices. The Club sought the extension of an injunction to prevent the publication of that material, on the basis that the material was confidential legal advice. The Club did not seek to restrain any material from the Kavanagh report.

Justice Rein examined the advices and concluded that all 13 items were taken from the Kane advice, and that none of those 13 items were referred to in the Kavanagh report. There was still a question whether the defendants had the advices and no documents were produced by them after the plaintiff served a notice to produce them. It was noted that the journalists might have transcribed portions of the advice.

There was evidence that the defendants were intending to publish the advices in the future. In a radio interview on 27 April 2013, the second defendant, a journalist stated that:

  • There was a lot more to come in the next couple of weeks;
  • The report was leaked, and another lawyer had gone over the Kavanagh report and added to it with the possible legal ramifications for the Club’s Board;
  • The document was identified as a 60-page document;
  • It was not reported but would be in the following week, once it was legalled.

Justice Rein concluded that it was clear that the material published came from the Kane advice and that it was confidential advice given by a lawyer to his client. There was sufficient material to establish that some of the defendants knew that this was the case.

The defendants argued that the advices were not confidential because they had been identified in previous publications in the public domain. That argument was rejected. While there was no clear evidence that the defendants had the Sullivan advice, there were several indications that this was the case.

While the defendants had not explained exactly what they held, Justice Rein still concluded that the Club was entitled to an order preventing any further publication of any of the legal advice given by Mr Kane or Mr Sullivan.

So for now, the players and Clubs all around Australia still wait for ASADA’s findings. The media no doubt, will be holding their front pages when the time comes.

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Journalist’s source can be served as a pseudonym: Ultrasonic Slimming Pty Ltd & Anor v Fairfax Media Publications Pty Ltd [2013] NSWSC 547

Justice Nicholas was asked a question that has been troubling humankind since the dawn of time: If a tree falls in a forest and no-one hears it, does it make a sound? Or put in terms of the defamation list, if a statement of claim is served on a pseudonym, has the case started?

SMHOn 6 March 2013, the Sydney Morning Herald ran a story: “investigation of cheap Botox `sausage factory’.” The journalist, Melissa Davey, had a source for the story, and she promised to keep the identity of that source a secret. She wrote the following in her article:

“A patient, Susie Driver, complained to the college after she developed thrush and a two-week headache after treatment in December. She had previously bought a voucher from the discount website Groupon to receive `anti-wrinkle injections’ for $139….

Ms Driver said that when she redeemed the voucher she was told she would receive 30 units of Botox over two facial areas, working out at $4.63 a unit. According to the college, in Australia genuine Botox costs a doctor about $5.67 a unit…..

Ms Driver said she was told Botox would be used in the injections.

The Gladesville clinic eventually refunded the price of Ms Driver’s voucher.”

The first plaintiff ran the business, Ultrasonic Slimming Clinics and the second plaintiff was the owner and sole director of the business. They sued the Sydney Morning Herald, Melissa Davey and also Susie Driver, who as it turned out, is not her real name.

In serving the statement of claim, given that the plaintiffs had no idea who the mysterious Susie Driver was, they applied to the court for an order for substituted service. They intended to send the statement of claim pm her, by serving the solicitors for the first two defendants. The media objected.

The media relied on the tried and trusted privilege relating to the identity of the journalist’s source. They referred to sections 126J 126K and 131A  of the Evidence Act 1995 (NSW). Those sections basically provide that if a journalist has promised an informant not to disclose the informant’s identity, then neither the journalist nor the employer is compellable to give evidence that would disclose the identity of the informant or enable that identity to be ascertained.

The media defendants argued that what the plaintiffs were doing, was simply trying to get the source’s identity through other means, in that the source would have to put in an appearance and thus reveal her secret identity.

However, His Honour Justice Nicholas disagreed that this would necessarily happen. He concluded that the application was just one of procedure and of bringing notice of the case to “Ms Driver”. The journalist-source privilege provisions had no application to what the plaintiffs were trying to do, and substituted service ought to be allowed. Nothing in the application sought disclosure of anything from anyone.

So Ms Driver could be served with the proceedings and it was really up to her as to what their next step would be. His Honour pointed out that Ms Driver could apply for a suppression order or a non-publication order (not sure what the point of that would be, the person would still be liable for damages, just no-one would know about it).

So apparently, a plaintiff can sue a person under their pseudonym. Lucky they didn’t have this rule in Gotham City, Batman would have been bankrupted six times over.

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Talk-back caller’s claim does not get on: Casley v ABC [2013] VSC 251

Jon Faine is the talk-show host on ABC Radio in the morning in Melbourne. On 2 July 2010, he took a call from a self-described “well known and frequent caller to radio talkback programs” and the “secretary of the People Yes Party.” Faine had asked listeners to ring in and express their views about the mining tax.

According to the plaintiff, who was the caller, the conversation went like this:

Jon Faine

Jon Faine

Faine: John in Sandringham. Morning to you John.

Casley: Oh good morning, Jon. Look, er the tax doesn’t stop the profits being taken out by the bucketful every year and this is the enormous problem that’s facing Australia.

Faine: Its John from Brighton isn’t it?

Casley: Er no, Sandringham.

Faine: Yeah Brighton. Its John Casley. Good morning how are you?

Casley: Hello Jon.

Faine: Have you moved?

Casley: Ah, yes.

Faine: OK. Well, John from Brighton in Sandringham. But let’s just be clear, your um – status with ABC talkback I don’t think has changed, John.

Casley: Well, all I wanted to say was that the People Yes Party has a policy which puts a tax…

Faine: You’re not welcome to come on and spruik a political party and, John, owing to your repeated racist utterances on the program, as you well are aware, you have been banned. So John from Sandringham or John from Brighton, its still the same guy.”

Putting to one side the imputations that the broadcast carried, the first problem that Casley faced was the timing of his case. The limitation period is 12 months from the time of publication and the plaintiff filed his statement of claim on 27 March 2013, more than two and a half years after the event. The ABC applied to strike the case out.

To get the claim off the ground, the plaintiff had to show that it would not have been reasonable for him to have brought the proceedings within 12 months of the broadcast. So the issue was this: what is the excuse?

The plaintiff said that he had made a complaint to the Australian Communications and Media Authority (ACMA) and spent most of his time waiting for a response from them.

The problem with that was that on his own timeline, there were still large gaps when the plaintiff did not act. At first, he wrote to ACMA on 20 August 2010 to complain. ACMA responded on 18 October and 19 November 2010 saying that the plaintiff had to raise the matter with the ABC first. So the plaintiff raised it with the ABC and on 19 May 2011, ACMA wrote to the plaintiff again and expressed a preliminary view that there had been no breach of the ABC’s Code of Practice. The plaintiff was invited to comment before a final decision was reached.

There was further correspondence and then on 6 July 2011, just over a year after the broadcast, ACMA gave the plaintiff a final report. It concluded there had been no breach of the ABC’s Code of Practice.

The plaintiff said that he had not brought proceedings to that stage because he did not want to jeopardise the ACMA investigation. However, no steps were taken by the plaintiff between July 2011 and December 2011. On 23 December 2011, he again wrote to ACMA and said that he wanted ACMA’s decision to be appealed to the Administrative Appeals Tribunal.

On 7 May 2012, ACMA wrote back and told him that he had no formal right to have ACMA review its decision, and could not appeal to the AAT. Thereafter, the plaintiff did not act further until 27 March 2013, when he issued these defamation proceedings.

Justice Beach concluded that it is not easy for a plaintiff to get an extension of time, and that there were no circumstances which made it unreasonable for the plaintiff to bring the proceedings within the twelve month period. The ACMA complaint route was not an alternative to litigation and it was not the same as settlement negotiations. Therefore, the plaintiff lost.

His Honour went further and stated that, even if he had been satisfied that it was not reasonable for the plaintiff to have commenced the proceedings within a year of the broadcast, as a matter of discretion, he would not have extended the limitation period to 27 March 2013, but the proper exercise of His Honour’s discretion would have extended the period to 12 months from 6 July 2011, when ACMA sent its final report to the plaintiff. On any view, the case was statute barred and struck out.

Next caller please.

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English Tweet not so Innocent: Lord McAlpine v Bercow [2013] EWHC 1342 (QB)

The Claimant

The Claimant

In England, Lord McAlpine is a former Deputy Chairman of the Conservative Party and a former Party Treasurer. He was a close aide to Margaret Thatcher during her time as Prime Minister and he had a significant political profile in the 1970s and 1980s. He retired from working for the Conservative Party in 2002 and since then, has lived in southern Italy, out of the public eye.
The Defendant is a well known English lady for a number of reasons. She is the wife of the Speaker of the House of Commons and had appeared on television a number of times in well known broadcasts. She has a Twitter account with over 56,000 followers.
On 4 November 2012 she Tweeted 14 times and one of those Tweets landed her in the English High Court in this case. The Tweet constituted only seven words, but the question was whether it was defamatory. What happened was this.
On the night of Friday 2 November, BBC’s current affairs show, Newsnight broadcast a report which included a serious allegation of child abuse. The allegations were made by a Mr Messham, who was undoubtedly abused when he was a boy living in a care home in Wales in the 1970s and 1980s. He alleged that one of his abusers was a person who was variously referred to as “a leading Conservative from the time”, “a leading Conservative politician from the Thatcher years”, “a senior public figure”, “a shadowy figure of high political standing” and “a prominent Tory politician at the time”.
However, as Justice Tugendhat pointed out at [15], this was a case of mistaken identity.
The Newsnight report did not name the politician referred to and stated that it did not have enough evidence to “name names”.
After that, a number of further publications in the media followed. Between 2 and 4 November, online and traditional media widely reported on Newsnight’s allegations. The Guardian, The Sunday Telegraph, Mail Online. None of them named the politician either, but simply reported on Newsnight’s story. It also set off a frenzy of unsubstantiated speculation on social media networking sites and several politicians were named there. The BBC subsequently reported that it was preparing to expose a senior political figure as a paedophile.
Behind those facts, the Defendant Tweeted this:
“Why is Lord McAlpine trending? *Innocent face*”

For those who don’t spend time in the Twitterverse, the Twitter website has a screen with a box

The Defendant

The Defendant

headed “Trends”, which lists names of individuals and other topics that are immediately popular, to help people discover the emerging topics of discussion.
In terms of the Innocent Face, it is like an emoticon and readers are apparently to imagine that the Defendant is looking innocent while sending the Tweet.
The question was what did the Tweet mean? It was a preliminary question, where no evidence was heard and if it was found that the Tweet was not defamatory, then the case would end.

The Claimant claimed that as a result of these facts in the lead up, the Tweet meant that he was a paedophile who was guilty of sexually abusing boys living in care. The Defendant argued that she was simply asking a question and that was entirely neutral. Good luck with that one.

Clearly, the Tweet would mean nothing to any reader who had not seen the Newsnight report or any of the other media reports or did not know who Lord McAlpine was. The issue was whether that material ought to be treated as part of the general knowledge of the Twitter followers.

In the absence of evidence, Justice Tugendhat inferred the following:
1. There were a substantial number of viewers of the Newsnight report;
2. By early 4 November a very large number of people in England and Wales had read one or more of the media reports;
3. The people who viewed the Newsnight report and who had read the other media reports included a substantial number of readers of the Tweet.

The Claimant submitted that the only reasonable explanation for the words “innocent face” was to hint or nudge readers into understanding that the Claimant had done wrong. Then the answer to the question asked in the Tweet would be to the reasonable reader, that the Claimant was trending because he was the senior Tory politician from the Thatcher years who Mr Messham identified as his abuser in the children’s home in Wales. That is serious.

The Defendant submitted that she was innocent and was simply asking why Lord McAlpine was trending, and this had nothing to do with anything.
Justice Tugendhat concluded:
1. The Defendant’s Twitter followers were probably very largely made up of people who shared her interest in politics and current affairs.
2. They would have had some prior knowledge of the Claimant as a leading Conservative politician from those years.
3. The Tweet asked why the Claimant was trending in circumstances where: he was not otherwise in the public eye and where there was much speculation about the identity of an unnamed politician who had been prominent from 20 years before.
4. The reasonable reader would understand “innocent face” as being insincere and ironical. There was no sensible reason for including those words in the Tweet if the Defendant simply wanted to know the answer to a factual question.
5. It was reasonable to assume that the Claimant was trending because he fitted the description of the unnamed abuser.
In determining the meaning, Justice Tugendhat concluded that the Tweet meant, in its natural and ordinary meaning, that the Claimant was a paedophile who was guilty of sexually abusing boys living in care. Just about as defamatory as it gets and a massive win for the Claimant.

As for the Defendant, she will be looking at a hefty damages bill, should the matter of assessment of these damages ever ultimately get to trial.

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Fijian Property Developer’s case struck out: Mahon v Mach 1 Financial Services Pty Ltd (No.2) Pty Ltd [2013] NSWSC 10

It is well known that a plaintiff has very little chance of getting an injunction to restrain the publication of defamatory matter.  Courts will usually say that damages are an adequate remedy. It is also well known that the Defamation Act provides that, for the most part, a company cannot sue for defamation in Australia.

The plaintiff

The plaintiff

So what does a company do? Injurious falsehood is the answer. A company can sue if there is a false malicious publication and it causes actual financial loss to that company. Very difficult, especially proving malice and especially proving financial loss, but unlike defamation, the chance for an injunction is greatly increased.

So if all a defamation plaintiff wants is an injunction, why not try and dress up the claim as an injurious falsehood one? The answer is that if you do, your fate will be pretty much the same as Neville Mahon earlier this year: struck out.

The case related to a claim for injurious falsehood arising out of the publication of a large number of emails concerning the plaintiff on two websites. Initially, in December 2011, the plaintiff got an interlocutory injunction restraining the defendants from maintaining the websites or publishing like material and also ordering them to shut down the websites.

Three months later, the plaintiff filed his statement of claim. The defendants then applied to strike it out. The basis was that the claim did not set out the actual loss that the plaintiff would have suffered, had it not been for the injunction. After the plaintiff provided further particulars, the matter came back before Her Honour Justice McCallum, and the question was whether it disclosed a cause of action in injurious falsehood. The plaintiff only asked for a permanent injunction to restrain the injurious falsehoods and no claim was pressed in defamation.

The plaintiff is a property developer in Fiji. He was the director of 2 companies, Denarau Investment Ltd and Denarau International Ltd. Neither of these companies was a party to the case. Denarau Investments was the developer of the Denarau Resort on Denarau Island in Fiji. It marketed and sold villas. The alleged injurious falsehoods concerned the Hilton Denarau Resort in Fiji.

The alleged injurious falsehoods were statements that the plaintiff:

  • Diverted monies otherwise payable to villa owners;
  • Bribed or corrupted police working in the Fijian court system;
  • Is a crook;
  • Engaged in illegal activity;
  • Engaged in underhanded business deals;
  • Concealed illegal activity or underhanded business deals;
  • Has been a party to a conspiracy of concealment of illegal activity or underhanded business deals.

The defendants argued that this was just a defamation claim masked as a claim for injurious falsehood. So the plaintiff needed to establish an argument that he actually suffered loss, had the injunction not been granted.

The plaintiff provided particulars of loss that related to various companies with trust structures and beneficial interests, and which related to various property developments in Australia, New Zealand and Fiji. But could not identify any personal loss to himself.

As a result, he could not make out an argument that he suffered any loss. The Fiji Hilton was the only property identified that had any connection with the plaintiff, but the particulars did not reveal any direct commercial interest held by the plaintiff. The shareholding was neither held nor controlled by the plaintiff.

On considering the particulars and further evidence from the plaintiff, Her Honour concluded that the case was “a transparent device to obtain a permanent injunction in what is, in substance if not in form, an action to vindicate the plaintiff’s personal reputation with no anchor in any tangible proprietary or commercial interest of his.” [18].

The case was not brought to protect any commercial interest, but only the plaintiff’s personal interest. So the statement of claim was struck out, victory for “Wikileaks” and the ingenius injurious falsehood argument brought to heel. Whether the plaintiff now brings a case for defamation remains to be seen.

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No tort for breach of privacy in South Australian epic: Sands v South Australia [2013] SASC 44

In a trial that ran for 55 days late last year and concluding in February this year, the plaintiff, Derick John Sands, has lost his claim for defamation, as well as other claims including a breach of confidence and a breach of his right to privacy.

The plaintiff had already sued Channel 7 and the ABC and lost [2009] SASC 215(2009) 104 SASR 452. His appeal to the Full Court in that case was dismissed [2010] SASC 202, and his application there for special leave to appeal to the High Court was dismissed [2011] HCA Trans 20 (11 February 2011). So this was no stranger to litigation.

sandsThe case came from an unsolved murder in July 1997. In terms of background, the plaintiff is a photographer who had lived in South Australia all his life. He worked with Messenger Newspapers from 1988 until July 2004 and in his private time, he worked as a freelance photographer.

Corinna Marr was a receptionist for a firm of land agents. A salesman there did some business with Messenger Newspapers and wanted some business cards made. He approached the plaintiff to do that work. As a result, the plaintiff met Ms Marr in May 1995 and a friendship developed. She got married in January 1996, but the plaintiff kept visiting and on two occasions they had full day outings together, for photo shoots to assist Ms Marr in developing a modeling career. The question of the status of their relationship, and particularly whether it was sexual in nature or not, was a matter of dispute at trial.

On 4 July 1997, Ms Marr was shot dead in her unit. She had left work early that day and her husband found her dead at 4.02 pm. Later investigations estimated that the time of death was between 2.30 and 3pm that day. No-one has ever been charged with the murder.

The murder had substantial media coverage at the time. The Officer in charge of the investigation was Detective Keane. He observed there had been no forced entry at the Marr’s home, there was no robbery and there had been no sexual assault. No weapon was ever found. Statements were taken from a number of people who were considered suspects.

The plaintiff said that he went to the police station the following week to offer assistance. He gave a statement and his alibi was that he was in the Messenger Newspaper office at the time, processing his photos.

Detective Keane said that between 1998 and 2002, he received information that heightened his suspicion that the plaintiff was guilty of the murder. Apparently the plaintiff was not in the Messenger office for some time of the afternoon of the murder. The plaintiff was interviewed at length on 8 October 2002 and admitted that he may have left the office for a drink or some lunch. After that interview, the plaintiff became a suspect.

On 24 January 2004, the plaintiff’s home was searched and he volunteered to give a sample of his DNA, but not his fingerprints. On 25 February 2004, the SA police force applied for an order under the Forensic Procedures Act that the plaintiff be ordered to give his fingerprints and handprints. Sections 47 and 48 of that Act provided that no person who came into information as a result of such an application could disclose that information unless certain conditions were met. This was the basis for the plaintiff’s claim for breach of the tort of privacy.

The plaintiff alleged that the affidavit in support of the Forensic Procedures Application was leaked to the Adelaide Advertiser and that this was the first publication on which he sued. An article was published in that newspaper on 28 February 2004, but it did not name the plaintiff. Nor did it describe him. It said that the application would be heard on 2 March.

On 2 March 2004, the Forensic Procedures application was heard in the Magistrates Court. The plaintiff was named in the course of the application and his name was included in the causes list. No application for a suppression order was made.

The plaintiff was legally represented at the hearing, although he was not there. The orders were made by the Magistrate on 2 March 2004 and there was substantial media coverage of it, although the identity of the suspect could not be published and was not.

The next day, Detective Superintendent Mick Symons held a press conference to reveal that the fingerprints obtained did not match the unidentified fingerprints found at the crime scene. He said the person (although the plaintiff was not named) would remain a suspect.

The plaintiff alleged that by reason of him being named in the Magistrates Court during the application, people became aware that the first article referred to him.

The next article sued on was published in the Adelaide Advertiser the next day. Again, the plaintiff was not

Corinna Marr

Corinna Marr

named, but was described as the main suspect. After that, the further publication sued on was the press release on 3 March. The release did not name the plaintiff but referred to the “person nominated in the affidavit supporting the application for the order”.  At the press conference, reference was made to a “34 year old professional photographer”.

The plaintiff sued the State of Australia for the actions of the SA Police Force, and also sought to attribute liability to the State for the publications in The Adelaide Advertiser. The trial, having been stayed while the plaintiff ran his case against Channel 7 and the ABC, commenced in September last year.

Publication

The first question was whether the State was responsible for the leak. The journalist would not name his source and Her Honour Justice Patricia Kelly found that the plaintiff did not prove that there was an unauthorized leak from the Police Force [101]. In conclusion, the source may have come from the Courts Administration Authority, so the Police, and hence the State, were not liable then for the articles published. One might ask if the State could be liable for any actions by a person at the Courts Administration Authority, but that did not seem to be addressed. In any event, Kelly J went on to consider other submissions that were raised in the course of the trial.

Identification

The next issue was the media release and the press conference. Her Honour found that there was an inference that at least one person understood the references in these to be references to the plaintiff [106], but there was no grapevine effect so that this did not become known to the public [116-117].

Her Honour found that the plaintiff proved publication in relation to both the media release and the press conference, but only to those members of the media who were present at the press conference and who were under a clear obligation of confidentiality with regard to the plaintiff’s identity by virtue of s.48 of the Forensic Procedures Act.

The imputations

Without going into all of the imputations for all of the asserted publications, broadly, the plaintiff’s imputations revolved around the following:

(a)  There are strong grounds to suspect that the plaintiff murdered Corinna Marr;

(b)  Alternatively there are reasonable grounds to suspect that the plaintiff murdered Corinna Marr;

(c)   The plaintiff had so conducted himself as to warrant the suspicion pleaded in (a) and (b).

Defences: Absolute Privilege and Qualified Privilege

The first question here was whether the press conference and the media release were covered by absolute privilege because they were for the purpose of soliciting information from the public and solving the murder. Her Honour found that the statements were not covered by absolute privilege [198].

As for qualified privilege, this was based on the reciprocal duty-interest argument, ie. The police had a duty to publish and the people of the State had an interest in receiving the information about the status of the investigation into the murder of Ms Marr.

Justice Kelly concluded that the press conference did not attract qualified privilege, but in any event, the publication went beyond the occasion of any such interest. The Police had to keep the public informed of the state of the investigation [213], but did not have a duty to state things like: “…. It was a cold blooded killing virtually on an execution style…. The murder of Ms Marr was particularly cold blooded – the person who committed this murder had no feeling for her or her family.

Defences: Justification

Her Honour ultimately did not accept the plaintiff as a witness of truth [241, 302, 311]. Not a good start when the defendant has pleaded truth. Justice Kelly concluded that there could be no reliance on the plaintiff’s evidence on important matters, where it was not supported by other reliable evidence.

As for the justification defence, at [561] Her Honour stated: “The issue for determination in this trial is not whether the plaintiff is guilty of the crime of murder, nor even whether there is a case to answer against him. The issue is whether, objectively judged, there was evidence as at March 2004 which constituted reasonable grounds to suspect that the plaintiff murdered Ms Marr and whether there was evidence which supported the conclusion that the plaintiff had conducted himself in such a way as to warrant that suspicion

Her Honour then referred to the evidence that supported that conclusion, including:

  • Circumstances surrounding the entry into Ms Marr’s home indicated it was probable that whoever killed her knew her;
  • The plaintiff was sexually attracted to Ms Marr and Justice Kelly was satisfied that he acted on that attraction;
  • Her Honour found that the plaintiff lied to Detective Keane on 8 October 2002 on the topic of his relationship with Ms Marr and so lied to the police in his statement on 30 August 1997;
  • Her Honour was satisfied that the plaintiff spoke with Ms Marr on the morning she was murdered;
  • Her Honour found that the plaintiff lied to the police about his whereabouts on the afternoon she was murdered.
South Australian Supreme Court

South Australian Supreme Court

Accordingly, Justice Kelly concluded that there were reasonable grounds to suspect the plaintiff of the murder, and the evidence supported the conclusion that the plaintiff’s conduct warranted reasonable suspicion and the defence of justification succeeded [575].

Plaintiff’s claim for defamation dismissed.

Breach of confidence: The tort of breach of privacy

The plaintiff alleged that the circumstances surrounding the bringing of the application under the Forensic Procedures Act gave rise to a duty of care, a duty of confidence and duty of privacy on the State:

  • Not to disclose any information obtained through the conduct of the forensic procedures;
  • Not to publish any other information tending to identify the plaintiff as the subject of a forensic procedure application;
  • To take reasonable steps to protect the plaintiff’s anonymity as the person the subject of the Forensic Procedure application.

The plaintiff alleged the duties were breached by publishing to The Advertiser the application and affidavit of Detective Keane, or publishing the fact of the existence of those documents, failing to make application to ensure that the plaintiff’s name was not published in the causes list and failing to apply to the Court for a suppression order.

Sections 47 and 48 of the Forensic Procedure Act provided that persons who had or had access to information through the conduct of forensic procedures under the Act must not disclose the information unless certain conditions were met, and section 48 provided a criminal sanction for breach of any such obligation.

Justice Kelly did not devote much to the question of the possible existence of the tort of breach of privacy. Her Honour held that the High Court stated in ABC v Lenah Game Meats Pty Ltd that it would require a further development in the law to acknowledge the existence of a tort and so it does not exist yet [614]. That is no fun.

Regardless, Her Honour held that the defendant never disclosed any private information about the plaintiff in the context of making the application under the Forensic Procedures Act [616]. The only disclosures made were in the course of taking lawful steps in the course of the investigation.

Damages

Justice Kelly also discussed what damages would have been awarded, had the plaintiff been successful and concluded that they would have been heavily discounted and minimal [631,637]. In any event, the plaintiff’s claim was dismissed.

So after 55 trial days, the plaintiff, tail between his legs, has failed in his claim. Whether he will go again to the Court of Appeal, notwithstanding the credit findings made against him, remains to be seen.

 

 

 

 

 

 

Posted in Absolute privilege, Damages, Identification, News, Privacy, Publication, Reciprocal duty-interest, Trial, Truth | Tagged , | 1 Comment

Hong Kong newspaper keeps its damages: Oriental Daily Publisher Ltd & Kwan v Ming Pao Holdings Ltd & Ors, in the Court of Final Appeal of the Hong Kong Special Administrative Region, Final Appeal No. 1 of 2012, 26 September 2012

As common as Hayley’s Comet, in Hong Kong, the defamation jury trial appears about once every 80 years. So although this particular decision was some months ago, I don’t think I will be around in 2093 for the next one, so I had better report on this one quick.

Hong Kong

Hong Kong

The story in itself is unusual. For starters, the Oriental Daily News, a Hong Kong daily with a circulation of around 110,000 (and probably the defendant in the last defamation case in 1933), was in this case, a plaintiff. What happened was this.

On 28 September 2001, Ma Chiu Sing phoned police and told them that he had put poison into cup noodles that were on sale in a certain supermarket. Police went there and discovered one such item with poison. On that same day, the Oriental Daily News got a letter written by Chiu Sing, who referred to himself as the “Hong Kong Bin Laden”. The letter said that he had poisoned the food and told police of its location and he demanded the resignation of certain public figures, otherwise he would poison more food and tell no-one where it was. The letter said:

“And the poison will not be kid’s stuff like this time. The locations of the poisoning next time may be in restaurant, may be water heater in canteens and etc… One person, ten persons, or one hundred persons may be killed next time…”

Similar letters were sent to other daily newspapers. He then phoned a journalist at the Oriental Daily News and said he was annoyed that his letter did not get more publicity. Later that day he called back and said he had poisoned some chocolate in a city supermarket and he wanted the threat to be reported. The poison was found.

On 2 October 2001, Chiu Sing’s reign of terror ended. He was arrested and in December 2002 he was convicted at trial, where he got 6 years and 8 months jail. He was released from jail in June 2006 and in the 2 months following, he sent 5 threatening letters back to the Oriental Daily News, leading to another conviction, this time for criminal intimidation in June 2007. He got a further 9 months in jail and was released from jail on 15 March 2008.

Around one month after being released for a second time, Chiu Sing mounted a demonstration outside the High Court Building. He wore a cap, dark glasses and a surgical mask. He had a banner with him, which was in Chinese and said this:

Is there still rule of law in Hong Kong?                                                     

Wrongful imprisonment! Bribery! Contract Killing!

Since I, Ma Chiu Sing was discontented that the founders of the Oriental Daily News, Ma Sik Yu and Ma Sik Chun, despite being members of a narcotics trading family and having caused harm to countless people and are on the wanted list, could still get off scot-free and enjoy the rest of their lives and pass their fortunes to their descendants. I had thus submitted an article to the complaint column of Oriental Daily News …… To my astonishment, Oriental Daily News and members of the Ma Family such as Ma Ching Kwan did not deal with the relevant complaint by lawful means, for instance, if they considered what I stated to be fabrications, they could have commenced a civil suit against me. Instead, not only did they fail to handle the matter by such means, they went so far as to fabricate a blackmail letter for 5 million to frame me up.”

The next day, another daily newspaper in Hong Kong, Ming Pao, ran an article with a photo of Chiu Sing and showing the banner. The caption said  “`Hong Kong Bin Laden’, Ma Chiu Sing demonstrated and distributed leaflets outside the entrance of the High Court Building yesterday, alleging that earlier someone had planted evidence to frame him resulting in his wrongful imprisonment.”

The first plaintiff

The first plaintiff

The plaintiffs sued, not for anything in the article that was published by Ming Pao, but for the publication of Chiu Sing’s banner. The first plaintiff was the publisher of the Oriental Daily News and the second plaintiff was Ma Ching Kwan, its chairman.

The plaintiffs asserted the following imputations from the banner:

  • That they had forged evidence in order to falsely incriminate Ma Chiu Sing;
  • That they had entered into a conspiracy with a prosecution witness, bribing him to give false evidence against Ma;
  • That they had perverted the course of justice, resulting in Ma’s imprisonment for criminal intimidation.

The nub of the defence was that the defendants argued that because the banner was written by the self-proclaimed “Hong Kong Bin Laden”: no-one would have believed it.

However, this argument did not work so well in the first trial: The plaintiffs won HK 1,650,000 between them (1,500,000 for the individual and 150,000 for the company) and a further HK 150,000 for aggravated damages as well.

Ming Pao appealed to the Court of Appeal, which set aside the verdict and installed its own assessment of the damages at HK 200,000 between the plaintiffs (150k for the individual and 50k for the company). Also, the awards for aggravated damages were set aside.

The plaintiffs then appealed this judgment to the Court of Final Appeal and tried to get the trial judge’s tattslotto verdict restored.

Liability was not an issue on the appeal, the question was whether the Court of Appeal was correct in reducing the damages awards. The appellants bore a heavy onus, as they had to show that the Court of Appeal was “plainly wrong”.

The Court of Final Appeal looked at a range of factors, including that:

  • It was a repetition case where the accusations reported were of very low credibility;
  • Ming Pao did not adopt or affirm Ma’s allegations, but disavowed them 3 days later;
  • The content of the banner was not shown in its entirety;
  • There was no evidence that the Oriental Daily News’ circulation had reduced;
  • There was no evidence that Kwan’s feelings were hurt;
  • There was no viva voce evidence by either side at the trial, so the Court of Appeal was in the same position as the trial judge;
  • Given that Chiu Sing referred to himself as “Hong Kong’s Bin Laden”, this would have raised doubts as to his credibility in the mind of the ordinary reasonable reader;
  • The reader would have also seen that Chiu Sing had just gotten out of prison, having been sent there for criminal intimidation against the Oriental Daily News, so clearly, he would have had an axe to grind against it.

The main question was whether the poor credibility of the accuser ought to be taken into account. The Court concluded that it certainly was a factor in determining damages. It went to the extent of harm suffered, and in some instances, such a lack of credibility could even negate damages entirely. But not in this case, the Court of Appeal’s verdict was sound.

In conclusion, it was open to the Court of Appeal to set aside the trial judge’s verdict and install its own award of damages, The Court of Final Appeal agreed that the trial judge’s verdict was manifestly excessive, and that it was not a case for aggravated damages. The Appeal was dismissed.

So for Hong Kong’s defamation practitioners, they can take a break after that heavy workload, and steel themselves for the next defamation case in 80 years time. It will probably have something to do with a flying car.

 

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Google Australia not a publisher: Rana v Google Australia Pty Ltd [2013] FCA 60

In asserting that it is not a publisher of its search engine results, Google has at last had a win, of sorts, in the Federal Court. But the win was not as emphatic as Google would have liked, and certainly does not restore Google’s position to where it was 12 months ago.

Google.AustraliaRight now, Google LLC in America, once notified of defamatory material that it links to, is to be treated as a publisher of that material. However, Google Australia Pty Ltd, thanks to Mr Rana here (and a few others over the last couple of years) will not.

In this case, Ranjit Shamsher Jung Bahadur Rana sued Google Australia Pty Ltd, Google Inc and 2 other defendants who were authors of a number of websites that were allegedly defamatory of him. The websites were about things like cyberstalking, the psychology of stalking, personality disorders and the like. They were all hosted by Google.

Rana applied to the Federal Court for leave to serve proceedings overseas on Google Inc, and meanwhile, Google Australia applied to strike out the claim against it, on the basis that the claim had no reasonable prospects of success.

Rana also sued, claiming that Google’s activities contravened the Disability Discrimination Act and the Racial Discrimination Act. Justice Mansfield stated that Rana’s application did not make it clear what his complaints actually were, but the application referred to websites that broadly included the following statements:

  • Rana is an alcoholic with brain damage;
  • Rana has genetic personality problems;
  • Rana is an unclean thing that no woman wants to be around;
  • Rana is a continual bankrupt;
  • Rana receives extortion money, which he sends to `lovely Russian girls’ – `a loving financee’;
  • Rana is a cyberstalker;
  • Rana used Nina Gregurev’s email address to create a false Facebook account;
  • Rana sends emails out in other people’s names and has done so for at least 15 years;
  • Rana’s daughter has said to him to `get a job you lazy bum’.

Google Australia was sued because it was submitted by Rana that it was the owner and operator of the domain name, google.com.au. Other than that, it was not clear what the claim against Google Australia was, apart from the fact that the domain name was Australian and Google Australia was a subsidiary based in Australia.

Google Australia filed affidavit material which stated that:

  1. A search engine enables automated search processes on keywords according to pre-programmedalgorithms, to list hyperlinks to webpages in an order determined by assessed relevance;
  2. A search engine can be programmed to block a specific webpage;
  3. If that occurs, the webpage is still accessible on the internet;
  4. Google Australia is a wholly owned subsidiary of Google International LLC and Google Inc is the ultimate holding company;
  5. Google Australia is not authorised to, and has no ability to, control or direct the conduct of Google Inc and is not responsible for the day to day operations of Google Inc;
  6. Google Inc owns and operates the domains google.com.au and google.com. The search engines at those domains are exclusively provided by, operated by and controlled by Google Inc;
  7. Google Australia does not have any ability to control or direct action in respect of blocking URLs from google.com.au.
  8. Google Inc owns and operates the business that supplies the Google Web Search and Google Images products.

Rana had no evidence that Google Australia was the owner of the relevant search engines, nor that it hadgoogle3 any control over its use or management.

His Honour Justice Mansified referred to a similar strike out application brought in a NZ case by Google NZ (A v Google New Zealand Ltd [2012] NZHC 2352 at [44]), where the Court concluded that the operation and control of the Google search engine resides with Google Inc and not Google NZ.

Accordingly, His Honour concluded that Rana had “no reasonable prospect of proving that Google Australia owns the domains in question, or that it has the ability to control or direct the conduct of Google Inc” [40]. The case against Google Australia was then struck out.

As for Google Inc, it also had a win of sorts.  His Honour concluded that Rana’s claim for disability and/or race discrimination had no prospects of success [47] and struck that out. In terms of Rana’s defamation claim against Google Inc, His Honour did not make a final judgment, but did state that it would not be appropriate to refuse leave to serve overseas on the basis of Google Inc’s argument that it was not a publisher of the material [58].

However, His Honour concluded that Rana’s statement of claim was so vague that it did not comply with the pleading rules, and that if he were to grant leave to serve overseas, that was conditional on Rana fixing the statement of claim and also paying $8,000 into court as security for Google’s costs to respond to the statement of claim [82]. Harsh. Anyway, His Honour then stated that the application would be adjourned for those conditions to be met, and then there would be further consideration of the application.

Whether that is the last of this matter then, remains to be seen.

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Google wins but loses again, now in UK: Tamiz v Google Inc [2013] EWCA Civ 68

The Appellant

The Appellant

Payam Tamiz, an English Conservative politician who had been running for the local elections in Thanet, sued Google for anonymous comments on a blog that was created on Google’s blogger platform, “London Muslim”. The comments were posted between 28 and 30 April 2011 and were defamatory of Tamiz. They included allegations that Tamiz was a drug dealer, had stolen from employers and was hypocritical in his attitude towards women.

Tamiz first notified Google on 28 or 29 April 2011, when he used the “Report Abuse” function. He later sent a letter on 29 June, which was received on 5 July. Google emailed Tamiz on 8 July and asked if the comments were untrue. Tamiz replied yes, they were false and defamatory and on 19 July, Google emailed him back and asked if it could send his complaint to the author of the blog. Google also said it would not be removing the comments itself. Tamiz gave permission on 22 July, and on 11 August, Google emailed the blogger. On 14 August, the blog and all of the comments were removed.

Tamiz brought proceedings against Google Inc and Google UK for defamation. Those proceedings were initially struck out by Justice Eady. This was on the basis that Google Inc could not be deemed a publisher of material on its blogger platform.  It was also struck out because Eady J considered that Google had a defence under section 1 of the Defamation Act 1996, because it took reasonable care in passing the complaint to the blogger and another defence on the basis that the publication was so trivial that it did not constitute the commission of a “real and substantial tort” by Google Inc. This decision was the one that Google turned to, when facing defamation cases all around the world.

Regardless, Tamiz appealed, and the matter came before 3 judges of the Court of Appeal on 3-4 December 2012. Judgment was delivered on 14 February, the main reasons written up by Lord Justice Richards, with whom Lord Justice Sullivan and the Master of the Rolls agreed.

Richards LJ referred to Eady J’s decision, as well as previous decisions. At [23]:

In my view, the judge was wrong to regard Google Inc’s role in respect of Blogger blogs as a purely passive one and to attach the significance he did to the absence of any positive steps by Google Inc in relation to continued publication of the comments in issue. “

After all, Google offered design layouts for the blog, it provided a related service to enable ads to be placed on the blog, and it had the power and capability to remove or block access to offending material.

Richards LJ agreed that Google was not a primary publisher of the material, and until such time as it was notified of it. Without notice, Google would probably have the defence of innocent dissemination. However, once Google was notified of defamatory material, the situation was different. At that point, once it had a reasonable period to take the material down, it was then arguable that Google was a publisher [31], [35]. Justice Eady was wrong to strike the case out on that point.

In terms of the defence under section 1 of the Defamation Act, Richards LJ concluded that Eady J was wrong with that one as well. Although it was agreed that Google was not a “commercial publisher” within the meaning of the section and it did not have “effective control” over the person who posted the defamatory comments, as to whether Google took reasonable care in relation to the continued publication of the comments, Google had not done so, because it did not take down the comments after it received the communications from Tamiz. Therefore, the defence did not apply.

So at this stage, being paragraphs 1- 48 of a 54 paragraph judgment, things were looking good for Tamiz.

google2But the final 6 paragraphs, including separate one-line paragraphs from Sullivan LJ and the Master of the Rolls that consisted respectively of “I agree” and “I also agree”, were not good for him.

The Court agreed with Eady J that the publication was so trivial that there was no “real and substantial tort”. The basis was this:

  • The blog went up on 27 April 2011;
  • The comments were posted on 28-30 April 2011;
  • They were followed by numerous other comments, “and whilst still accessible, will have receded into history”;
  • The earliest point when Google would become liable is some time after notification of the complaint to them;
  • It was highly improbable that any significant number of readers would have accessed the comments after that time.

A bit harsh.

Tamiz pressed the “Report Abuse” function around 28 April, but nothing seems to be made of that. It was barely mentioned. He then wrote on 29 June and the comments stayed up until 14 August. It is not clear what the basis was for concluding that no significant number of readers would have accessed the comments. Perhaps the judges had some Search Engine Optimization experience and felt that the site would not rank on the first page for Google’s search results. Perhaps they just thought that because there were other comments, no-one would have read the defamatory ones. It all sounds pretty speculative.

In any event, the appeal was dismissed and although there is now English authority for the proposition that Google Inc can be deemed to be a publisher of material on its blogger platform (and hence probably its search results as well), Tamiz won’t care. He has been left with a huge costs bill and a judgment that concludes that his complaint was so trivial that there was no wrongdoing by Google, even if it was the publisher. Ouch.

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Google wins ACCC battle in High Court, but has it lost the defamation war?: Google Inc v ACCC [2013] HCA 1

In 2012, the Full Court of the Federal Court held that Google engaged in misleading or deceptive conduct, in breach of s.52 of the Trade Practices Act because if a person searched for four particular businesses, misleading or deceptive sponsored links (from competitors) were produced.

For example, if a person did a Google search for “Harvey World Travel”, they would get this sponsored link:

Unbeatable deals on flights, Hotel & Pkg’s Search, Book & Pack Now! www.statravel.com.au”.

The Appellant

The Appellant

If you are not an Australian Backpacker, student or hippie traveller, then you may not know that STA Travel is actually an entirely different travel agency to Harvey World Travel.  They are competitors. Nonetheless, some computer savvy person at STA added the words “Harvey World Travel”, to STA’s Google AdWords account.  Sort of like a Pepsi person adding the word “Coke”. Clever.

The other three examples followed similar lines. They were clearly misleading advertisements, and the advertisers themselves had clearly engaged in misleading or deceptive conduct.

The question was this: Was Google liable for engaging in misleading or deceptive conduct as a result of the production of the sponsored links? Did it make the representations?

The High Court unanimously disagreed with the Full Federal Court and Google got off.

In the main judgment, French CJ, Crennan J and Kiefel J concluded that Google did not author the sponsored links, it merely “published or displayed” them. Their analysis centred around whether, to establish misleading conduct by Google, it had adopted or endorsed the representations (Hayne J concluded that this was not required, but let Google off as well for other reasons).

Google contended that ordinary and reasonable members of society would have understood that Google did not adopt or endorse the representations in the sponsored links, and therefore, should not be liable for them.

The High Court concluded that Google had no control over a user’s choice of

High Court

High Court

search terms or an advertiser’s choice of keywords , and was not the producer of the sponsored links. The advertiser was the author and people would have understood that Google had nothing to do with the misleading or deceptive conduct done by them.

So Google’s production of sponsored links did not equate to misleading or deceptive conduct. The question remains for media lawyers: Is Google a publisher of its organic search results?

In defamation law, Google has always contended that the production of its search results did not equate to publication. In England, it has been successful on that point and has had defamation claims struck out (although overturned on appeal in the last week or so) but in Australia, a jury last year held that it was a publisher.

In this case, Google conceded that it did publish the sponsored links. Why it did so is not clear. It will probably argue that such a concession was made in the Trade Practices setting, so does not equate to a concession in a defamation case.

Or Google may have been trying to limit the High Court’s consideration of the point, by admitting to having published the sponsored links and thereby preventing the High Court from specifically deciding that point. It would then possibly try and argue on another day (again in the context of a defamation case) that the organic results were somehow different, because they were not paid for.

But for Google, the High Court made this unhelpful statement at paragraph [69]:

 “That the display of sponsored links (together with organic search results) can be described as Google’s response to a user’s request for information does not render Google the maker, author, creator or originator of the information in a sponsored link. The technology which lies behind the display of a sponsored link merely assembles information provided by others for the purpose of displaying advertisements directed to users of the Google search engine in their capacity as consumers of products and services. In this sense, Google is not relevantly different from other intermediaries, such as newspaper publishers (whether in print or online) or broadcasters (whether radio, television or online), who publish, display or broadcast the advertisements of others. The fact that the provision of information via the internet will – because of the nature of the internet – necessarily involve a response to a request made by an internet user does not, without more, disturb the analogy between Google and other intermediaries. “

There you have it. According to the High Court: Google is the same as a newspaper, radio or television. None of them may be the makers, authors, creators or originators of the information, but they are all publishers. This is regardless of what fancy automated top secret algorhythm Google may use, it is still a publisher.

Not sure that Google will be so keen to litigate in Australia now…

 

 

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