It is something of a persistent myth that authors can hide behind pseudonyms and publish defamatory statements with impunity.  If, as demonstrated in Colagrande v Kim [2022] FCA 409 a plaintiff is determined enough there is high probability of obtaining sufficient information to identify the author and convince a court that that person is the correct defendant in a subsequent defamation proceeding. Jagot J ordered a very significant award against the respondents.

FACTS

Dr Colagrande (“Colagrande”) a Australian trained doctor who is highly qualified:

• in 1999 completing a training Fellowship with the Cambridge Private Hospital in Cambridge, United Kingdom i
• in 2002, becoming an Honorary Fellow in Aesthetic Plastic and Reconstructive Surgery at Addenbrooke’s Public Hospital in Cambridge, United Kingdom
• in 2005, gaining a Fellowship in Cosmetic Surgery from the European Academy of Cosmetic Surgery
• in 2005,  establishing a clinic at Mermaid Beach, Gold Coast, Queensland where he mainly performed cosmetic procedures, health assessments and well-being programs.

In February 2017 Dr Colagrande pleaded not guilty to a charge of  indecent assault of a patient, to which he was found not guilty [5]. On 5 June 2018 the Queensland Court of Appeal quashed that conviction and the prosecution entered a nolle prosequi (a formal abandonment of the charge) on 7 June 2018 [5].

Colagrande had an account with the RateMDs website, a Doctor rating site with over 40 million visits every year. Members of the public can post entries relating to doctors on the RateMDs website [6].

In early 2019 when Colagrande checked his profile on RateMDs he saw that on 12 December 2018 an unidentified person had posted the following review:

After what he did to me, I can’t believe he’s still practicing.
Just read the article. https://www.news.com.au/national/queensland/courts-law/gold-coast-plastic-surgeon-ces-colagrande-found-guilty-of-sex-assault-of-stripper/news-story/e6615788f087f0883c6620afe8165bfa

The review gave Colagrande 1 out of 5 for each of staff, punctuality, helpfulness, and knowledge [8].

Colagrande assumed the former patient who had falsely accused him of sexual assault had made the post [9].

When Colagrande contacted RateMDs it refused to remove the post so he retained lawyers in California to unearth the IP details of the person who had posted the review, as he understood that the only way to have the false review removed was to prove that the former patient made the post and that it was false given the outcome of the appeal [10].

RateMDs ultimately released the IP address pursuant to a subpoena [10].

Colagrande after retaining lawyers in Australia to identify the account holder(s) of the relevant IP address commenced proceedings against Telstra, the service provider [10].  On 4 November 2020 Telstra was ordered to provide the account holder(s) information which it did two weeks later [10]  The account holders were the respondents, Mr Min Sik Kim and Mrs Anna Min.

The Applicant relied on the evidence of Dr Dennis Desmond, a cyber security expert, whose  evidence was that the false review:

• was posted on 12 December 2018 at 09:18 AEST
• used a Samsung mobile device
• from a Telstra account
• the respondents were the account holders [13].

Colagrande’s evidence was that he felt “sick to the bone” on discovering that the person who posted the false review was another doctor who  practised in the same field. He described himself as becoming paranoid about other doctors, did not know who to trust, and felt isolated from other doctors, defenceless, vulnerable and in despair. His anxiety increased and he feared others would read the false review and, like he did, assume that it was from the former patient who was trying to exact vengeance.

Colagrande instructed his Australian lawyers to send a concerns notice to the respondents which then led to this proceeding, which was commenced on 21 June 2021 [11].

There was no dispute that the false review carried both pleaded defamatory meanings that:

(1) Dr Colagrande sexually assaulted his patient; and

(2) Dr Colagrande had so conducted himself in sexually assaulting his patient he should not be practising medicine.

DECISION

The court rejected  the respondents’ submission that:

• the first respondent had any motive to damage Colagrande’s reputation as the evidence did not support the proposition that they are direct commercial competitors in performing the same types of procedures Her Honour inferred from the evidence that the first respondent perceived Colagrande was a competitor [17] and that he had a motive to post the false review in order to damage  Colagrande’s reputation as a perceived commercial competitor [18].
• the second respondent didn’t have any motive to publish something defamatory about Colagrande and the Court would not find that she had made the post as the second respondent admitted she has full authority to use the internet account used to make the post [20].

The court found that the first and second respondent acted in concert to upload the post containing the false review to the RateMDs website on 12 December 2018 [21].

The evidence established that at all material times:

• the first respondent:
  • was a doctor practising cosmetic surgery.
  • performed liposuction, Brazilian butt lifts, breast augmentation using fat transfer, and administered injectables.
  •  was aware that Colgrande performed breast augmentations.
  •  main office was located on the Gold Coast
  • was aware that Colagrande had an office on the Gold Coast and performed breast augmentations at that location [14].
  • admitted that on 18 December 2018 the only mobile phone he owned was a Samsung Galaxy Note, which was password protected & he alone knew the password [15]
  • had an account with the RateMDs website which identifies him as Dr Mitchell Kim, a “Plastic/Cosmetic Surgeon. Physician”.
  • profile page on the RateMDs website contained a reference to “Dr Ces Colagrande’s” profile on that website under the heading “You may also like”.
• the respondents each had full authority in respect of the Telstra account used to post the false review [15]
• the internet service associated with this account was connected to a residential address [15].

The court did not accept the respondents’ attempts to undermine the cogency of the evidence of the witnesses who read the false review and its effect on them [22] and provided a summary of the evidence at [23] – [33], saying that their “..answers were clear, cogent and credible about the essential matters: (a) they did a Google search about Dr Colagrande for their own reasons (either because they were considering having surgery with him or were considering offering him work), (b) they read the false review as a result of finding and looking at the RateMDs website in the Google search results, and (c) they reacted to the false review either by deciding not to have surgery with Dr Colagrande or by deciding not to offer him employment as they had contemplated before seeing the false review”. [35]

Regarding RateMDS her Honour stated that:

• people contemplating having surgery with a doctor or contemplating employing a doctor might be more interested in what other patients say about the doctor than news articles.
• some of the witnesses routinely search the internet for patient reviews of their contemplated doctor, including on the RateMDs website, even if they have previously been happy with the services of that doctor.
• doctors are judged on their ongoing (that is, current) performance.
•  the witnesses did the Google search for their own reasons unprompted by anyone, finding the false review on the RateMDs website, and reading and reacting to it [36].
• when witnesses  searched for Colagrande using Google, they found both the RateMDs website and the false review, with apparently relative ease [38].
• it appeared on the first page of search results of Colagrande using Google [38].
• there was an inference that a large number of people are likely to have read the false review within the 12 months before the commencement of the proceeding [39].

The Court had little time for the respondent’s submission that allowance had to be made for the fact that Colagrande was already extremely hurt and traumatised by the criminal proceedings against him, and the media reporting of those proceedings, which still remains online [41] describing it as ” ..based on a dubious psychological proposition that it is necessarily the case that every person who has suffered one trauma must be less hurt and traumatised by any subsequent related trauma”. [42]

The Court restated what has always been the case that “..hurt and offence to the person defamed are to be assessed on the evidence, assessed in the ordinary course as to its cogency” [42].

Regarding harm the court :

• stated that Colagrande was and remains traumatised by the accusation, criminal proceedings, initial conviction, stress of the appeal process before his vindication by the quashing of the conviction and the entry of the nolle prosequi by the prosecution before any retrial, and the fact that stories about all of these events  remain online [43].
• disagreed with the respondents’ submissions that Colagrande’s evidence about the hurt and further trauma as a result of the false review shouldn’t be accepted because it  “defies credulity to suggest that the publication of a single, four-line review on RateMDs was of just as much concern to the applicant, and caused him just as much trauma, as the experience of being charged with a serious crime that he did not commit and given a suspended custodial sentence on that charge, with all the associated (and continuing) media attention that came with it” [44] – [45].
• said the reading of the false review inflicted a profound new trauma, particularly because  Colagrande understood the false review to have been posted by the patient who had made the accusation against him given the terms in which it was drafted. [45]
• accepted his evidence that:

(1) “…the RateMDs made me re-experience everything all over again”;

(2) despite recovery being a “slow road” “…before I read the RateMDs post, I was doing a lot better. I was in a good mental state”, “I was in a much better mental state and coping much better”. While he continued to be upset by the criminal proceedings, he was now “doing a lot better from the criminal proceedings”, but was still now suffering from the false review;

(3) “[t]he publication of the conviction is very different to this RateMDs”; and

(4) “[a]nd having a review posted on your RateMDs page pales into insignificance in comparison to that; do you agree?—Incorrect. No.”

• it cannot infer that  Colagrande had a bad reputation requiring mitigation of the damages to be awarded to him on that account [46].
• Colagrande cannot recover from the respondents for any hurt or harm done to him by the previous publications as previously published about his charge and conviction & the respondents are not liable for that hurt or harm: 
• the respondents are responsible for the hurt and harm done to Colagrande by the false review posted on the RateMDs website, being the kind of website to which (I accept) a prospective patient or employer may well have recourse to ascertain other patients’ views of Dr Colagrande [49]
• before reading the false review Colagrande was in control of his emotions and trying to get his life back on track, but was worried about the “negative articles still published about him that misrepresented [him] as a sexual predator”. After reading the false review :
  • he was “an emotional wreck”.
  • it took him back to “relive the horror” of the criminal trial and his conviction, and
  • he “was fearful that the patient was not finished in destroying [his] life and reputation”.
  • he had visions of the verdict as he stood in the dock and other nightmares and flashbacks.
  • he could not sleep and took time off work to avoid making mistakes.
  • on 2 June 2019 he was diagnosed with post-traumatic stress disorder[9].

Damages

The Court stated that because the defamatory imputations carried a serious sting and stigma particularly for a doctor said to have breached a patient’s trust by subjecting the patient to a sexual assault in the course of a medical consultation the damage to Colagrande’s professional and personal reputation must be real and likely to be far more extensive than the direct evidence exposes. The need for vindication of reputation was also strong. .

The court cited Carson v John Fairfax & Sons Ltd [1993] HCA 31 regarding principle of vindication  stating:

“[v]indication looks to the attitude of others to the [applicant]: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the [applicant’s] reputation” .

The fact that  Colagrande might have been more susceptible to serious hurt and trauma from the false review than someone else might have been due to his previous experiences does not undermine the extent of his hurt and trauma caused by the false review because, citing Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652 at [446(c)]..

“A person publishing defamatory imputations must take applicants as they find them. Accordingly, it is appropriate to have regard to the individual sensitivities of an applicant”.

The corut regarded the state of mind of the respondents, actuated by malicious intent, substantially exacerbated the harm suffered by Colagrande  [55].

The court noted that:

• while the evidence supports an inference that reviews on the RateMDs website are generally anonymous, such anonymity is not necessary.
• the uniquely malicious sting of the false review required anonymity.
• the fact of anonymity of the false review is an aggravating circumstance of the respondents’ conduct in posting the false review [57].
• the terms of the false review are sufficient to found an inference adverse to the respondents – that they knew Colagrande’s conviction had been set aside and calculated the best way in which to cause Colagrande the most possible harm by inducing readers to believe that the sexual assault had occurred [58].
• the fact that the respondents did not remove the false review until September 2021 despite having been requested to do so in January 2021 was further improper and unjustifiable conduct on their part [59].
• the fact that the respondents chose to continue to deny responsibility for publication in the face of overwhelming contrary evidence is another aggravating factor [60].
• the respondent’s inferred motives – for the first respondent to damage a commercial competitor and the second respondent to assist the first respondent in achieving that object – were also aggravating factors because they exacerbated the harm suffered by  Colagrande [60].
• the respondents pleading that a matter in mitigation was that  Colagrande’s websites advertising his services involved women “wearing lingerie and high-heeled shoes”, “posing in an overtly sexualised manner”, and that he used “overtly sexual imagery in the depiction of women’s bodies, including women who are purported to be ‘Actual Patients’ in order to advertise his services as a cosmetic surgeon in a way which exceeds what is necessary or appropriate to objectively depict the results of surgeries which was “unprofessional conduct for a medical practitioner” was  not in good faith and was improper and unjustifiable.  The plea was maintained until March 2022 but then abandoned. That was an aggravating circumstance [61].

Under s 35 of the Defamation Act the maximum amount of damages for non-economic loss was $432,500 [62].

In support of principles of aggravating damages her Honour quoted  Lee J in Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15  at [236] where he stated that:

... if an award of aggravated damages is appropriate in this case, the cap is inapplicable and an order for damages for non-economic loss that exceeds the cap in respect of both pure compensatory damages and aggravated compensatory damages can be made: Bauer Media [Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154; (2018) 56 VR 674] (at 732 [249]); Rush [Nationwide News Pty Ltd v Rush [2020] FCAFC 115; (2020) 380 ALR 432] (at 526–7 [459]–[466]). But it is of significance, as the Full Court pointed out, that it is always necessary to bear in mind that s 34 of the Act continues to apply and provides an “ever-present guide to ensure remedies are fair and effective in the context of achieving the objects of the Act with the aim of ensuring consistency of awards in defamation proceedings across jurisdictions and to correct any imbalance with awards of damages for personal injuries”: Bauer Media (at 731 [244]).

Because the circumstancess justify an award of aggravated damages  the maximum amount of damages for non-economic loss of $432,500 does not apply by operation of s 35(2) of the Defamation Act (as it was before the 1 July 2021 amendments) [64].

Colagrande relied on the following summary of cases :

(a) Thunder Studios Inc (California) v Kazal (No 12) [2022] FCA 110 where an Australian businessman was awarded $1,350,000 (in total) for general and aggravated damages including interest in respect of two ongoing internet publications on a website that conveyed imputations that he had breached fiduciary duties, that he so lacked in integrity to pay a journalist to publish invented lies and that he attempted to pervert the course of justice.
(b) Tribe v Simmons [2021] FCA 1164 per Lee J – where the brother of a famous basketball player was awarded $550,000 in general damages including aggravated damages in an undefended hearing for serious allegations of sexual assault and molestation of his half sister (a minor), and causing her mental and permanent physical injury, in three “tweets” on Twitter, where the actual extent of publication was unknown.
(c) Nettle v Cruse [2021] FCA 935 per Wigney J – where a plastic surgeon was awarded $450,000 in general damages including aggravated damages in an undefended hearing for internet publications alleging fraud and medical malpractice.
(d) Webster v Brewer (No 3) [2020] FCA 1343 per Gleeson J – where a politician who was also a doctor, her doctor husband and a charity for women were defamed in seven Facebook written and video posts alleging they were participants in a secretive criminal network involved in the sexual abuse of children. The first video was viewed 2400 times before it was removed from the platform by Facebook and there was evidence that each post was interacted with hundreds of times. There were findings that the allegations were believed by a small but significant segment of the local community harming the reputation of the applicants and that may have contributed to the decline in women being referred to the charity. There was however a significant finding that the publications were not reasoned or plausible and reasonable people would dismiss them as deranged and lacking in credibility:

i. First applicant, the politician and also a medical practitioner was awarded $350,000 in general damages including aggravated damages;
ii. Second applicant, a medical practitioner, only the target of three of the publications was awarded $200,000 in general damages including aggravated damages; and
iii. The charity was awarded $300,000 in general damages.

(e) Tavakoli v Imisides (No 4) [2019] NSWSC 717 per Rothman J – where a plastic surgeon was awarded $530,000 in general damages including aggravated damages plus interest in an undefended hearing for allegations of incompetence and cruelty against him on a Google review.
(f) Al Muderis v Duncan (No 3) [2017] NSWSC 726 per Rothman J – where a surgeon was awarded $381,000 (the then cap) in general damages and an additional $99,000 in aggravated damages in an undefended hearing for serious allegations of medical malpractice, cruelty and fraud on five internet publications complained of including videos on various sites including a website constructed using a similar URL to the surgeon’s website and continuing internet publication constituting harassment. The extent of publication on the evidence was unknown.
(g) Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176 – where (prior to the Defamation Act 2005) a doctor published a letter accusing another doctor of deliberately lying to those concerned with a medical conference, the jury awarding $600,000 in damages as an undifferentiated sum of compensation for lost opportunity to earn income and for distress, damage to reputation and vindication of reputation. The plaintiff was accused of lying in a professional context, and it was important that the accusations did not come merely from another doctor, but by him as acting for the second defendant, the Royal College. The damages award was unanimously upheld on appeal.

The Court awarded:

•   $420,000 to  Colagrande on account of his non-economic loss [71].
• special damages in the sum of $31,511.29 on account of the money  spent to ascertain the underlying facts which lead inexorably to the inference that the respondents posted the false review [71].

Because of the real risk of the respondents publishing the false review or matter to the same effect unless restrained the court granted permanent injunctions on publishing the false review or any matter to the same effect [74].

ISSUE

Jagot is not known as being generous in awarding damages.  The very significant award highlights the egregious nature of the defamatory statements. 

For future reference the award itself is of less relevance given the amendments to the Defamation Act on 1 July 2021. 

The decision highlights the process and the practicality of locating anonymous publishers of defamatory statements.