In the Victorian Government Gazette S314 Friday 24 June 2022 the Attorney General made a declaration under section 35(3) of the Defamation Act 2005 to increase the maximum non economic loss damages to $443,00.

The declaration states:

Defamation Act 2005
DECLARATION UNDER SECTION 35(3)

I, Jaclyn Symes, Attorney-General, being the Minister for the time being administering the Defamation Act 2005, hereby declare in accordance with section 35(3) of the Defamation Act 2005 that on and from 1 July 2022 the maximum damages amount that may be awarded for non-economic loss in defamation proceedings is four hundred and forty three thousand dollars ($443,000).

Dated 7 June 2022

JACLYN SYMES MP
Attorney-General

Justice John Dixon has provided a very valuable judgment in Agustin-Bunch v Smith (No 2) [2022] VSC 290 providing a very useful and detailed analysis of how to plead, and more particualrly how not to plead defences.  It ended up being a bad day at the office for the defendants.

FACTS

The plaintiffs by writ seeks:

• damages,
• a permanent injunction restraining the defendants from publishing certain material, and
• a mandatory injunction for the removal of certain publications from the internet that they allege are defamatory [1].

The second plaintiff seeks damages pursuant to s 236 of the Australian Consumer Law (‘ACL’), contending that the defendants had engaged in misleading or deceptive conduct in contravention of s 18 of the ACL [1].

On 12 April 2021,  the court refused the plaintiffs’ application for an interlocutory injunction restraining the defendants from publishing or causing to be published in any form, or maintaining online for download, or uploading so as to make available for publication online:

(a) 15 specific videos;
(b) hyperlinks to a Facebook group described by the plaintiffs as the ‘Dr Farrah Hate Page’;
(c) certain Facebook and Instagram posts;
(d) the imputations and representations set out in nominated paragraphs of the plaintiffs’ statement of claim; and
(e) any matter of and concerning the plaintiffs to the same purport or effect as any of the publications referred to.

The relevant publications alleged to convey defamatory imputations are videos [6] where Dr Smith speaks partly in Tagalog and partly in English to a Filipino audience [7].

The defendants pleaded the defences of:

• truth,
• contextual truth,
• honest opinion, and
• qualified privilege both at common law and relying on the relevant statutory provisions [8]

The plaintiffs allege about 70 imputations and the defendants plead a truth defence to approximately 60 imputations [10].The defences have been Read the rest of this entry »

The Federal Court, per Rares J, found for John Barilaro in Barilaro v Google LLC [2022] FCA 650 for defamation by means of posts on YouTube and awarded him $715,000.

FACTS

The publications complained of were two YouTube videos prepared by a Mr Shanks:

• bruz, first uploaded on 14 September 2020.  The contents are described in great detail at [33] – [63]; and
• Secret Dictatorship, first uploaded on 21 October 2020 [3].  It is described in great detail at [81] – [91]

The imputations pleaded in bruz video was that:

(a) Mr Barilaro is a corrupt conman;

(b) Mr Barilaro committed perjury nine times;

(c) Mr Barilaro has so conducted himself in committing perjury nine times that he should be gaoled;

(d) Mr Barilaro corruptly gave $3.3 million to a beef company; and

(e) Mr Barilaro corruptly voted against a Royal Commission into water theft [4].

The imputations pleaded in Secret Dictatorship video was that:

(a) Mr Barilaro has acted corruptly by engaging in the blackmailing of councillors;

(b) Mr Barilaro has acted corruptly by engaging in the blackmailing of councillors using taxpayer money; and

(c) Mr Barilaro has pocketed millions of dollars which have been stolen from the Narrandera Shire Council [5].

On 25 November 2020 Barilaro’s chief of staff, McCormack, contacted Google Australia’s manager to complain about the racist and untrue content of friendlyjordies videos [129].  On 30 November 2020 Barilaro’s social media manager made a formal complaint to YouTube about the allegations Read the rest of this entry »

The Full Bench of the High Court heard argument in Google LLC v Defteros [2022].  It is a case of considerable interest to defamation practitioners.  The key issue is whether a search engine a publisher of defamatory material on a third party website to which that search engine provides a hyperlink when the search result on its own conveys no defamatory imputation.  Also Google seeks a ruling on what is required to notify the search engine of defamatory publication for the purposes of the common law doctrine of innocent dissemination and the statutory defence under section 32 of the Defamation Act 2005. 

The transcript of oral argument before their Honours can be found here.

It is an appeal from a decision from the Victorian Court of Appeal in Defteros v Google LLC [2021] VSCA 167 (17 June 2021).  Interestingly on that occasion the appellant, Defteros, was unsuccessful.  Google’;s cross application for leave to appeal was refused. 

Special leave was granted on 10 December 2021 conditional upon Google paying Defteros’s costs of the appeal and not disturbing the costs orders in the Court of Appeal and at trial.  The transcript of the Special Leave Application can be found here.  In short, there is a public interest in resolving the issue. 

The essence of Google’s submissions is that the trial judge and the Victorian Court of Appeal erroneously found that the provision of a hyperlink was participation in the communication of defamatory material for the purpose of publication.  

The submissions of both parties can be found Read the rest of this entry »

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 Read the rest of this entry »

The Prime Minister today foreshadowed legislation to unmask online trolls and amend the law of defamation in response to the High Court decision in Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27.  The necessary bills will be released in the next week.  A mid morning media release on a Sunday, usually a slow news day where editors fret on what will fill the front page the next day, guarantees big coverage on Monday.

Extracting the reforms from the media release the changes will involve:

• legislating a requirement that social media platforms to set up a complaints system so as to remove defamatory remarks;
• establishing a new Federal Court order to require social media giants to identify details of trolls to victims without consent.
• Australians and Australian media organisations will not be considered publishers. 
• social media platforms will be considered publishers though liability may be avoided if they provide information which permits victims to commence defamation proceedings against a troll.

The curious thing is that there is already a process for applying to the Federal Court for an order to a social media platform, search engine or internet service provider to identify an author who is using a pseudonym to defame someone.  I make these applications regularly enough as part of my defamation practice.  The principles are well established and the process is not overly onerous.  What new order is required will be interesting to see. There is also concern raised about social media platforms being required to collect personal information which would be provided if the mooted application is made.  That is not as dramatic as has been reported.  Google and Yahoo and other platforms require email addresses and sometimes phone numbers.  They can provide the isp number. It is relatively easy to identify the author from those details.  Similarly if the social media is put on notice about defamatory posts they may currently lose their protection from suit in the Broadcasting Services Act. 

If the Government were serious about Read the rest of this entry »

The Defamation Act 2005 was due for a review in 2010.  Five years late the Council of Attorney Generals released, late last week a Model Defamation amendment.  The consolidated Act, if the amendments are implemented, are found here.  The New South Wales Attorney General has taken the lead in drafting the Bill.  That is not surprising given Read the rest of this entry »

It is something of an understatement that the last few years have been busy in the defamation space.  And generally uncomfortable for the defendants with big awards in the Rebel Wilson (after reduction by the Court of Appeal) and Chris Gale cases.  As significantly has been the proliferation of cases arising out of commentary on line, often through social media.  Another interesting development is the growing preference for plaintiffs to issue proceedings in the Federal Court rather than in the state courts.  This obviates the need for a jury trial, often times a comfort for defendants.  This has resulted in significant comment and calls for reform by news outlets.   

The Council of Attorneys General are in the process of undertaking a review of defamation law. 

On 26 February 2019 the Council released a 43 page discussion paper titled “Review of Model Defamation Provisions.”    The NSW Attorney General also issued a media release.

There are 18 questions posed Read the rest of this entry »

The High Court in Trkulja v Google LLC [2018] HCA 25 upheld an appeal from the Victorian Court of Appeal regarding a summary judgment application. It is a very significant decision in relation to pleading the of defamation when the imputations arise from search engine results.

FACTS

While not enamoured of the drafting the Court noted that the Appellant’s (Trkulja”) Amended Statement of Claim was  sufficiently comprehensible to convey that Trkulja alleged that:

• Google defamed him by publishing images which convey imputations that he:
  • “is a hardened and serious criminal in Melbourne”, in the same league as figures such as “convicted murderer” Carl Williams, “underworld killer” Andrew “Benji” Veniamin, “notorious murderer” Tony Mokbel and “Mafia Boss” Mario Rocco Condello;
  • is an associate of Veniamin, Williams and Mokbel; and
  • is “such a significant figure in the Melbourne criminal underworld that events involving him are recorded on a website that chronicles crime in [the] Melbourne criminal underworld”[3].
• Google published the defamatory images between 1 December 2012 and 3 March 2014 to persons in Victoria, including several named persons, upon those persons accessing the Google website, searching for  Trkulja’s name or alias (Michael Trkulja and Milorad Trkulja), and then viewing and perceiving the images presented on-screen in response to the search [4].
• the allegedly defamatory matters  comprising two groups:
  • “the Google Images matter” and
  • “the Google Web matter” [5]
• some of the pages include an image that contains text stating, inter alia, “Google lawsuit in court”, “COLOURFUL Melbourne identity Michael Trkulja” and “Mr Trkulja an associate of Mick Gatto” [7]
•  the images matter and the web matter are defamatory of  Trkulja in their natural and ordinary meaning and  carry the following defamatory imputations:

Read the rest of this entry »

It was always on the cards that Bauer Media would appeal its loss in Wilson v Bauer Media Pty Ltd [2017] VSC 521. And today Bauer Media announced that it was appealing the quantum of the damages.  Just inside Read the rest of this entry »