Fairfax Media Publications Pty Ltd v Voller

Fairfax Media Publications Pty Ltd v Voller was a case decided by the High Court in 2021.

The case concerned whether or not a newspaper publisher could be liable for defamation where the article complained of was published on an online platform that was later taken down.

The court held that, where an article is published on an online platform and then taken down, the publisher may still be liable for defamation if it can be shown that they knew or ought to have known that the article would be accessible to readers in Australia.

This is because, even though the article is no longer available on the original platform, it may still be accessible to readers through other means (e.g. through search engines).

This decision has important implications for media organisations that publish content online, as it means that they need to be careful about what they publish and take prompt action to remove anything that could be defamatory.

It also highlights the importance of ensuring that articles are not published on platforms where they can be easily copied and distributed (e.g. social media).

This case serves as a reminder that defamation law still applies to content published online, even if it is later taken down. Media organisations need to be aware of this and take care to avoid publishing anything that could be defamatory.

Malice and qualified privilege

Malice defeats the defence of qualified privilege in Australia. If a person can prove a defendant acted without malice, then they will be protected from defamation proceedings.

The law of qualified privilege in Australia is designed to protect people who make statements about others in certain situations.

This may include situations where the person making the statement is required to do so by their job, or where the statement is made in order to protect the interests of another person.

In order for the defence of statutory qualified privilege to apply, the Uniform Defamation Acts provide that the following elements must be present:

• the recipient has an interest or apparent interest in having information on some subject;

• the matter is published to the recipient in the course of giving him or her information on that subject;

• the conduct of the defendant in publishing the material in question is reasonable in the circumstances.

However, common law qualified privilege is more commonly relied on than the statutory defence in Australia. It is the most common defence in Australia in defamation.

At common law, a publication is made on a privileged occasion if:

• it is made without malice;

• it is made by a person in discharge of some public or private duty, whether legal, social or moral or for the purpose of protecting some private interest;

• it is made to a person who has a corresponding interest in receiving the communication. 

If these elements are present, then the person making the statement will likely be protected from defamation proceedings.

Qualified privilege is not an absolute defence, however, and there are some situations where it may not apply.

For example, if the person making the statement knows that it is false, or if the statement is made with the intention of causing harm to the person it is about, then qualified privilege may not apply.

Qualified privilege is a complex area of law, and it is always advisable to seek legal advice before making any statements about others that could potentially be defamatory.

Grieving parents who were defamed in emails, awarded $60K damages plus costs

I acted for Matthew and Lyndal Trott at this defamation trial.

I was Trial Counsel, together with Junior Counsel, Isaac Priddis.

The facts were tragic.

My clients’ Son, Samuel Trott, drowned in a lake near his home.

Matthew and Lyndal, were neighbours of the defendant, Ms Ansuya Rajoo.

The relationship with her broke down about 4 years after Sam died.

Sam was a toddler, who had autism.

He had wandered from the family home after a tradesperson left the front door open.

His body was found after an extensive search by community members at the lake about 600 metres away.

The coroner concluded that his death was an accident. 4 years later, the neighbour sent emails to the local police inspector and the principal of the school of the surviving siblings with a number of defamatory imputations.

These included that my clients had conspired to kill their son by conditioning him to jump into the backyard pool with a life jacket on. She said this gave him a false sense of security so that he jumped into the lake and drowned.

In assessing damages, the District Court of Western Australia found that although there was a limited extent of publication and no impact on their professional reputations, there could be no more serious an allegation than the imputation that parents murdered an infant son with autism. The emails attacked them “in the worst possible way as parents”. The impact of the allegation was significant and devastating. Their hurt in grieving their son’s death was exacerbated, being forced to relive it. They felt fear for their surviving children. They felt they needed to move house to get away from the neighbour.

Their good reputation as parents and community members was unchallenged and presumed.

The defendant made no apology. She had acted with malice. Aggravated damages were awarded and indemnity costs orders made.

You can read the decision here.

Here is a media article about the case.

Carter v Napper

I appeared for the Plaintiff in Carter v Napper [2022] WADC 25. The decision is here.

Judge Prior of the District Court of Western Australia held that 4 matters published by the Defendant were defamatory of the Plaintiff.

His Honour found that the Plaintiff was entitled to an award of damages in the amount of $30,000 and an additional $10,000 for aggravated damages.

The Court also granted the Plaintiff’s application for a final injunction and awarded indemnity costs to the Plaintiff. 

My client was the owner of a cleaning business who worked in an apartment building. The Defendant was a tenant who asserted the owner was not doing his job, was a danger to children and a paedophile. My client and his husband lived in the apartment building as well as running the cleaning and gardening business which cleaned the building. The also ran a clothing business.

The tenant, Mr Napper, lived opposite the couple.

He asserted in an email to the strata manager that my clients ran photoshoots in the building, inappropriately rented out their property, and that the age difference between Mr Carter and his husband suggested that he was a paedophile and unsafe to be around children.

Injunctions restraining Mr Napper were also made.

The case highlights the approach the Court will take where the Defendant’s conduct exacerbates the Plaintiff’s hurt following a defamatory publication and where further conduct is unreasonable in the context of settling the resulting dispute.

For these reasons, the Court agreed with my submissions that aggravated damages and indemnity costs should be awarded to the Plaintiff.

Higher cap for non-economic loss under Defamation Act

As at 1 July 2022, the cap for non-economic loss has increased.

It is now $443,000.

See here for the relevant edition of the Government Gazette.

New case - Defamation damages for $480,000

Interesting defamation article from news.com.au: Respected surgeon wins $480,000 in defamation case involving disgruntled patient

Read the judgment here.

Online reviews

Businesses and ordinary people need to be increasingly aware of the affect internet publications can have on online reputations.

Google product reviews and a plethora of independent review sites such as Zomato, yelp, TripAdvisor and Product Review have made it increasingly easy to damage somebody’s personal or business reputation online.

Smartphones have made it easier to instantly post an online review, often, without thinking of the consequences.

In general, the Defamation Act 2005 (WA) (see section 9 for more details) prevents corporations with more than 10 employees (full-time equivalent) from commencing proceedings for defamation.

However, it is still possible to defame:

• an employee or the owner of the business with more than 10 employees who may wish to commence proceedings personally; or

• corporations with fewer than 10 employees.

There may also be other legal avenues for corporations to pursue, such as the law relating to misleading and deceptive conduct.

In June 2017, the Supreme Court of NSW ordered 2 defendants to pay $480,000 in damages to the plaintiff for publications on a website, on Facebook, on Pinterest and a YouTube video which were each defamatory and alleged that the plaintiff was, amongst other things, criminally negligent and unethical.  In that case, the Plaintiff was a surgeon who had performed an operation on the second defendant (Al Muderis v Duncan (No 3) [2017] NSWSC 726).

Defences

However, there can be successful defences.

There can be a defence if the statement was a fair comment or honest opinion, for example.

Under the common law the defence of ‘fair comment’ is available if the defamatory statement is based on a factual matter which is substantially true.

The Defamation Act 2005 s 31 takes the common law defence a step further. 

The defence of honest opinion broadens the requirement that the factual basis be ‘substantially true’ to a requirement that it be based on ‘proper material’. 

The defence is available if (Defamation Act 2005 s 31(1)):

• The matter was an expression of opinion rather than a statement of fact,

• The opinion was related to a matter of public interest, and

• The opinion is based on proper material.

For the defence to be successful, it must be shown that the defamatory material is expressed as an opinion, and not as fact. As Lord Denning stated in Slim v Telegraph Ltd [1968] 2 QB 157 at 170:

“If he was an honest man expressing his genuine opinion on a subject of public interest then no matter that his words conveyed derogatory imputations: no matter that his opinion was wrong or exaggerated or prejudiced; and no matter that it was badly expressed so that other people read all sorts of innuendoes into it; nevertheless, he has a good defence of fair comment. His honesty is the cardinal test. He must honestly express his real view. So long as he does this, he has nothing to fear, even though other people may read more into it.”

The defence will be defeated however, if it is shown that the defendant did not honestly hold the opinion.

Example

In McEloney v Massey [2015] WADC 126,[3] the Court considered whether Facebook posts by the defendant in the “Poms in Perth” Facebook page were defamatory.

The Facebook posts related to an accountant whose services the defendant had sought.

The Facebook posts alleged that the accountant was unprofessional and rude and ripped off and overcharged his clients. The defendant raised the defences of justification and honest opinion.

The Court found that the expectations of the reasonable reader varied depending on the forum in which the material was published. The Court considered that the use of the words “clown” and “shark” in the Facebook posts indicated that it was an expression of an opinion.

The Court considered that because the accountant provided services to the public, the way he conducted himself in providing the services was a matter of public interest.

The matter was based on the personal experiences of the defendant and was based on proper material.

Advanced Health Directives

What are they?

An Advance Health Directive is a device created by the Guardianship and Administration Act 1990 (WA).  

In other jurisdictions they can be known as ‘Advance Care Directives’.

An Advance Health Directive is a written document which explains how you wish to be treated in the future should you be incapable of making informed decisions. They are the first port-of-call when a patient lacks capacity to consent to medical treatment. You can set out what treatments you consent to, or refuse to consent to, and how you would like to be treated. 

How do you make an Advance Health Directive?

An Advance Health Directive must be in the form prescribed by the Guardianship and Administration Regulations 2005. You must be of full legal capacity to make an Advance Health Directive and the legislation specifically encourages persons to seek legal advice (Guardianship and Administration Act 1990 (WA) ss 110P and 110Q(1)). 

It is important to have legal advice when making an Advance Health Directive as any treatment decision in the document is invalid, if (Guardianship and Administration Act 1990 (WA) s 110R):
-    the decision was not made voluntarily; 
-    the person was coerced into making the decision; or
-    the person didn’t understand the nature of the decision or the consequences when they made the Advance Health Directive. 

A legal practitioner can help by ensuring you are fully informed, and understand the nature and consequences of the decision, as well as making sure you make the decision voluntarily and are not coerced. 

Challenging an Advance Health Directive

Advance Health Directives are at the top of the hierarchy when it comes to deciding treatment. For example, if a person who is incapable of making treatment decisions has a valid Advance Health Directive, and has a guardian appointed, the Advance Health Directive will prevail. Therefore, it is frequently the case that Advance Health Directives come under challenge. 

In Hunter v New England Area Health Service [2009] NSWSC 761  the plaintiff sought declarations that it was justified in complying with the unconscious defendant’s wishes to refuse life-sustaining treatment, relying on a valid advanced care directive. 
It was held that:
-    If there is a genuine and reasonable doubt as to the validity of an advance care directive, a hospital or medical practitioner should apply promptly to the court for determination of the validity and operation of the advance care directive. 
-    The emergency principle justifies the hospital or medical practitioner to continue treatment until the decision of the court. 
-    An apparently valid consent by a capable adult may be ineffective if it does not represent the independent exercise of the person's volition; if the person's will has been overborne; or the decision is the result of undue influence or some other vitiating circumstance. 

What if there is already a public guardian?

In FI v Public Guardian [2008] NSWADT 263  the tribunal had to consider where the public guardian could approve an Advance Care Plan which permitted life-sustaining treatment to be withdrawn. It was held that the public guardian cannot make an Advance Care Plan for a represented person. However, a guardian can make decisions that involve withdrawing life-sustaining treatment so long as the decisions are made in the best interests of the represented person. 
 

Defamation in the workplace

If you have been defamed at work you may be entitled to compensation for defamation.

Generally, statements made at work are no different to any other statement.

If somebody defames you at work, whether by saying something to other colleagues or co-workers, or to clients or to your boss, either in person or in a defamatory email or otherwise, you may have a case in defamation and be able to seek damages. 

Defamation at work is generally only protected where a valid defence under the Defamation Act 2005 (WA) is available.  

The most common defence in workplace defamation situations is the defence of qualified privilege. 

Qualified Privilege

A defamatory statement, however, if made to a superior, or to a HR person as part of a formal complaints or investigation process, then it may be protected. 

This is because qualified privilege attaches to statements where the recipient has an interest in having the information, and the statement is made while providing that information, if the person acted reasonably in the circumstances (Defamation Act 2005 (WA) s 30(1)).

So a statement made concerning a persons’ performance for instance, if made to a superior and appropriately in order for the superior to be able to assess that person’s performance or investigate further is likely to be protected. 

In Boland v Dillon (2011) 243 CLR 298  the High Court of Australia decided that in some cases there are duties to advise the company of accusations against a company employee or to discuss activities by an employee or client which might be detrimental to the company or affect the efficiency of the company’s business. In these circumstances, the defence of qualified privilege might be available. 

However, if the person acted maliciously and intended to injure your reputation then they will not be protected by the defence (Defamation Act 2005 (WA) s 30(4)). 

Examples

There have been many cases where a person has been defamed in the workplace by a co-worker and has recovered damages. 

In Bristow v Adams [2012] NSWCA 166  the Court found that a letter sent to the HR manager of the company contained defamatory meanings about a supervisor, and awarded $10,000 damages. 

In Tassone v Kirkham [2014] SADC 134  an email was sent by one prison officer using another prison officer’s email which read “Hello people, just a note to say that I am a homosexual and I am looking for like-minded people to share time with”. The plaintiff went on sick leave, suffered stress and anxiety and was unable to continue in his position. He was awarded $75,000 for non-economic loss.

Publication & Republication

Who was the defamation published to?

To give rise to a cause of action in defamation the defamatory imputation must have been published to a third party.

The Defamation Act 2005 (WA) does not define ‘publication’.

Under the common law, publication takes place when defamatory material is communicated to some person other than the plaintiff (Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327).  

The third party may consist of a single person (Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364 at 367).  

For instance in Ritson v Burns [2014] NSWSC 272 the proceedings were brought in respect of a single comment made by the defendant to a third person.  The statement in question was made over the phone to a process server and were along the lines of “X is a criminal, I’m not going to give you my address”. This was enough to warrant an award of $7,500 damages. The plaintiff was also awarded costs, and interest on the damages.

It has even been held that communication by a third party of defamatory material about one spouse, to the other, can constitute sufficient publication (Theaker v Richardson [1962] 1 All ER 229).  

How was the defamation published?

If the defamatory imputation was published online, it will be deemed to have been published if the plaintiff can prove information has been conveyed (Dow Jones & Co Inc v Gutnick [2002] HCA 56).  

In Dow Jones & Co Inc v Gutnik the plaintiff showed that the information was conveyed once downloaded from the website it was uploaded to. In Gregg v O’Gara [2008] All ER (D) 111 the fact that one witness testified that he had accessed the material by typing the words ‘Yorkshire Ripper’ into a search engine was sufficient to show the material had been published.  If the person is not named, they may need to provide a witness who believed the published material was about them.

Even if the publication was unintentional, if it occurred because of the publishers’ negligence then this may still constitute publication (Coulthard v South Australia (1995) 63 SASR 531 at 539).  

Anything from spoken words, to printed or audio files, to internet pages, televised material, drawings or photos may constitute communication for the purposes of publication (Defamation Act 2005 s 4). However, the circumstances of the publication, including the mode, and the scope of the publication are relevant when assessing the award of damages.

Therefore, it is essential to obtain legal advice if you are concerned about a publication that has been made about you, or about a publication you are responsible for. 

Has ‘Republication’ occurred? 

In addition, the republication of somebody else’s defamatory statement constitutes a new and actionable defamatory publication, and the person who republishes is as liable as the original publisher (Lewis v Daily Telegraph Ltd [1964] AC 234 at 283, 284).  

It is no defence that the re-publisher is merely repeating a statement.

In certain circumstances the person who made the original publication can also be held to task for any republication of it. This is known as the ‘Rule in Speight v Gosnay’ whereby the original publisher is liable if the republication adheres to the sense and substance of the original publication and the repetition is the natural and probable consequence of the original publication (Speight v Gosnay (1891) 60 LJQB 231; Sims v Wran [1984] 1 NSWLR 317 at 320 per Hunt J).