In McDonald v Dods [2017] VSCA 129 the Victorian Court of Appeal considered the issue of inference of publication to unknown individuals who may have read a blog post.

It is an appeal from judgments of Bell J inDods v McDonald (No 1) [2016] VSC 200 (6 May 2016) and Dods v McDonald (No 2) [2016] VSC 201 (6 May 2016).

FACTS

The applicant, McDonald, was the administrator and author of the website ‘www.justice4tylercassidyjust15.com’ (the “website”) from December 2008 to October 2012 where he discussed the death of Tyler Cassidy by police shooting [3]. The respondent, Dods,  was a police sergeant and one of four Victoria Police officers attempting to contain Tyler Cassidy during which time he was shot dead [4].

On a website the applicant:

• first discussed  Dods’s background, questioned his promotion after the incident, and referred to ‘Colin Dods[‘s] execution of Tyler Cassidy’ (the ‘First Publication’). The respondent alleged that the First Publication conveyed the defamatory imputation that the respondent had executed Mr Cassidy [6].
• referred to Tyler Cassidy being ‘executed’ and ‘gunned down as if he was a dangerous mongrel dog’ (the ‘Second Publication’). The respondent alleged it raised the defamatory imputations that the respondent had executed Mr Cassidy, that he had shot and killed Mr Cassidy without any or any adequate reason; that he had gunned down Mr Cassidy like he was a monster and a dangerous mongrel dog, that in shooting at Mr Cassidy six times and killing him, the respondent had unlawfully used excessive force out of proportion to any threat posed, that the respondent chose to shoot Mr Cassidy, a slightly built, inexperienced and partially blinded boy, six times when he knew or ought to have known that he and other police officers present could have otherwise overpowered Mr Cassidy without anyone being harmed, and that by shooting Mr Cassidy, the respondent committed manslaughter [7].

On 3 April 2013, the respondent filed a writ and statement of claim [12].

To establish that  the publications were made within the relevant limitation period , within the year prior to the issue of the statement of claim, the respondent’s wife and a family friend  each gave evidence that they had accessed the website prior to 3 April 2012.  The respondent and the friend gave evidence that they had viewed the website again during the relevant limitation period from 3 April 2012. Each originally accessed the site in 2009 and 2010 simply by Googling either Mr Cassidy’s or Mr Dods’s name and found that the site was in the first page of results. They  returned to the website through a variety of methods in the subsequent years, including during the limitation period [13]

At trial the applicant applied for a ruling that he had no case to answer as there was no evidence that the statements had been published within the limitation period. The applicant submitted to the trial judge that as the friend had already viewed the site, her subsequent re-reading of the material could not be an instance of publication.  The trial judge ruled against the application finding:

• there was evidence on which the jury could find publication was made; and
• there was sufficient evidence from which the jury could infer publication had been made outside the friend to a pool of unknown individuals who would have downloaded and read the website (the ‘Google inference’)[14]

The trial judge stated that:

•  ‘[h]aving regard to the ubiquity of the Internet, the courts are not slow to draw an inference of publication on websites’
•  in this case ‘there was a substratum of fact to support a proper inference of publication’.
• as the matter was one of ‘substantial public controversy’ it was open to the jury to find on the balance of probabilities ‘by way of inference that the statement has been published to at least one (unidentified) person other that [sic] the plaintiff on or after that date’ [16].

After the jury returned its verdict, the trial judge ruled that $150,000 of damages for non-economic loss was payable to the plaintiff [21].

In making his assessment the judge referred to the following as relevant factors:

• the ‘very grave’ and ‘shocking’ nature of the defamations;
• the applicant’s failure to offer an apology despite repeated requests,
• the ‘intense experience of distress, embarrassment and humiliation’ that the respondent had suffered,
• the lack of mitigating factors, and
• the importance of the need for vindication [23].
• the scope of the publication was an important consideration.  Although the trial judge found that the publications were only available on the website for a period of about three months during the limitation period, the scope of the publication was not insignificant as the killing of Tyler Cassidy was a ‘matter of substantial public controversy’ and ‘searches of the plaintiff’s and Tyler’s name on standard search engines would have produced results that listed the the website very prominently’.

The Trial judge awarded aggravated damages were  because of the post-publication conduct of the applicant being:

•  ‘the defendant’s failure to apologise and retract in the present case was improper and unjustified’
• that it was egregious that the publication continued after ‘the coroner exonerated the plaintiff’ in a report that was ‘comprehensive and clear’
• that it was egregious that ‘until just before trial, the defendant persisted with defences including justification, that flew in the face of the coroner’s findings and contained no apparent foundation’ [24]

The  grounds of appeal pressed were, at [27] & [28]:

1. The learned trial judge erred by ruling that an inference of publication was able to be drawn from the primary facts as set out in paragraph [10] of the Reasons for Judgment No 1.

………..

4. The learned trial judge’s assessment of damages was manifestly excessive in that at [73] of the Reasons for Judgment No 2, his Honour placed undue weight on the scope and extent of the publication.

DECISION

On appeal, the applicant submitted that there was an insufficient substratum of evidence to make the Google inference that formed a basis for the finding of publication [18].

Ground 1 of the appeal: inference of publication

The applicant submitted:

• that an inference of publication could be made only where there is a proven platform of facts on which that inference could be drawn
• the mere posting of material on an Internet site is insufficient.
• according to the applicant, in this case there was no evidence to support the inference that the statements had been published to at least one (unidentified) person other than the plaintiff during the limitation period[30].
• the trial judge misconstrued the evidence about how the site was accessed in the limitation period. According to the applicant the evidence from the trial was that the witnesses had navigated to the website after 3 April 2012 through other means, either from having memorised the URL address or by having entered search terms of phrases peculiar to the site [31].
• that as Google is ‘not a static creature’, the evidence of where the search result had appeared  in previous years could not be relayed into a similar conclusion for 2012. The algorithm that Google used for its search results may have factored in the previous searches which demonstrated an interest in the topic of Mr Cassidy’s death. As such there was no evidence as to where the applicant’s website would have come up in Google search results for strangers who had not made these previous searches. This impacts on the judge’s finding  that there was sufficient evidence to infer a pool of unknown individuals would have read the impugned webpages.
•  for the trial judge to have concluded that the applicant’s website was on the first page of Google search results in 2012 was speculative [33].
• that the defamatory webpages were pages subsidiary to the homepage of the website and that even if the website was reasonably prominent among the Google search results, it was not consequential that the defamatory webpages would have been read. The applicant submitted that all that could be inferred was that the homepage may have been viewed [34].

The Respondent submitted:

• that there was ample evidence fit to go to the jury from which an inference of publication could be made & the evidence of the searches was a proper basis for an inference of the prominence of the webpage in Google search results even if their searches were done outside the limitation period [35].  The evidence was informative and could be used by the jury as it disclosed a pattern from which an inference could be made.
• a witness had found the webpage of her own accord &  had not been directed to it by the respondent but had come across it through searches of his name. Even though her first visit to the site was outside the limitation period, the respondent submitted it was readily foreseeable that others would have come across it with the same ease after 3 April 2012 [36]
• these factors, combined with the significant media attention given to the death of Mr Cassidy in 2008,  2010 & at the end of 2011 created a strong substratum of facts from which an inference of publication could be made [37].

The Court found that the trial judge was correct to rule that the evidence provided at trial was sufficient for the jury to find publication based on the Google inference [46].

The court noted that  Publication requires a bilateral communication whether third parties had downloaded and comprehended the material could only be deduced by inference as there was no direct evidence brought [47]. The Court cited Trkulja v Yahoo! Inc LLC, where the court stated it was  entitled to take into account, as a matter of judicial notice, that the use of the internet, to ascertain information about particular people, is now commonplace [49] but  distinguishable to the extent that there was been no evidence of an alteration in people’s behaviour towards the respondent after the defamatory material was published. The evidence was only that the respondent’s fear that this would occur [51]

The court found that  the sort of evidence from which an inference of publication could reasonably be drawn included the prominence of the defamatory material when searching for information about the defamed individual or entity, the frequency with which people use the Internet to inform themselves about others, and the ease witnesses had in accessing the material, for example due to the notoriety of the subject matter, are all factors which can inform an inference of publication [51].

The court found that in this case, there is evidence to support an inference of publication to unknown individuals via Google [56]. There was evidence that the site was a prominent search result when seeking information about Mr Dods & that was equally true when searching for information on Tyler Cassidy. That this information could be accessed by searching for Mr Dods’s name & Mr Cassidy’s name would have broadened the scope of the pool of individuals to whom these webpages may have been published [56].

The court gave weight to the fact that the death of Mr Cassidy gained notoriety and garnered significant media attention. In that context, with both Mr Cassidy’s and Mr Dods’s names regularly in the public eye, it is highly probable that numerous others may have read and downloaded the defamatory webpages. This conclusion is enhanced with the knowledge of the increasing regularity with which people use the Internet [57]. In the absence of evidence to the contrary, it was open to the jury to infer that similar results may have been returned in the limitation period even if evidence of searches of Mr Cassidy’s name was limited to prior years [59].

The Court rejected the applicant’s submission that as the defamatory claims were on subsidiary webpages rather than the homepage of the website, the inference of publication could not be made. The court likened this case to Duffy v Google Inc (No 1), in that the visible search result was eye-catching and would have attracted the attention of Google search users. The court found that it is reasonable to assume that Internet users would have explored the other pages for an elaboration of the claims made by the website’s author [60]

As the the jury needed only be satisfied on the balance of probabilities that publication occurred to make the Google inference the Court found that the trial judge was right to find that here there was sufficient evidence to be so satisfied [61].

Ground 4: the assessment of damages was manifestly excessive as a result of the undue weight the judge placed on the scope and extent of the publication

The applicant submitted:

• that if he succeeded in showing that the Google inference was not open to the trial judge, then publication of the defamatory webpages was made only to the other witness. The defence of triviality would be ‘enlivened’. According to the applicant, this would act as a defence to the finding that publication was made on the basis no harm was done to the respondent as the defamatory statements were viewed only by a close friend [38].
• that he relied on Ground 1 to support the submission under Ground 4 that the amount of damages was excessive with regard to the limited scope of publication [40].
• if the Google inference was set aside, the evidence only showed publication to one person during the limitation period [41]
• that the ‘grapevine effect’ could not be relied on in this case as there was no evidence to support it. As such it was not available as an alternative basis for finding a broader scope of publication warranting a higher award of damages [42].

The Respondent submitted:

• that the trial judge was correct to instruct the jury that there was evidence to support the Google inference so his Honour’s assessment of the scope of publication was accurate.
• that the trial judge did not rely on the Google inference to suggest there was widespread publication but rather his Honour described it as ‘not large’ but ‘not insignificant’ [43]
• that even if the publication was limited to one person the amount of damages awarded was nonetheless open to the trial judge. Damages should be awarded to respond to the very serious defamatory imputations made, the particular need to vindicate reputation, the personal hurt to the plaintiff and the aggravating factors [44]
• there was some evidence to support an inference of publication based on the ‘grapevine effect’ [45]

The court found that as a consequence of its findings under Ground 1 the applicant cannot succeed on the ground that the damages award was excessive due to the Google inference being made in error [62].

Notwithstanding that fact the court noted that the award of damages was reasonably open to the judge regardless of the scope of publication as:

• the defamatory claims were at the highest end of the scale
• the allegation of committing manslaughter, a grave crime in society, could have created severe and long-lasting damage to reputation.
• there was serious harm to the Respondent and his family had suffered as a result of the defamatory material.
• aggravated damages were warranted given the applicant’s persistence with his claims after the coronial inquest’s finding, given the applicant’s refusal to apologise, and given the applicant’s protracted reliance on the defence of justification [63].

As at May 2016, when the award was made, damages for non-economic loss for defamation were capped at $376,500 The trial judge’s award of $150,000 fell well within the middle range for such an award. Given the need for vindication in this case, we note that his Honour’s award was, if anything, light [64]

ISSUE

This decision confirms a distinct trend in defamation cases away from requiring analysis of who may have located and read the contents of a web page to a more expansive inference that publication to third parties is inferred.  That is particularly so where the subject matter of the publication is particularly notorious or relates to a matter of high public interest.  It is also significant that now the prominence in a Google search can lead to an inference of publication to third parties.  In this case given the Cassidy death was repeatedly in the news through a coronial inquest and the publication of findings having a post commenting upon the incidents would assist in such an inference.

The decision also provides a useful restatement of factors warranting a significant award.  A highly defamatory statement to even a limited audience may attract a significant award.  The fact that the appellant did not avail himself of opportunities to mitigate the damage in face of letters of demand contributed to a significant payment.