Policeman defamed

Barrister who ran Tyler Cassidy website ordered to pay $150,000

The Supreme Court of Victoria decision Dods v McDonald shows that aggravated damages will be awarded where defamatory implications are grave and maintained without any apology offered.

Facts

Tyler Cassidy was 15 years old when he was shot by police in a park in Melbourne.  Colin Dods, the plaintiff, was one of the Victoria Police Members who fired at Tyler.  The plaintiff was exonerated of personal responsibility and was found not to have contributed to Tyler's death in findings which followed a coronial inquiry conducted in 2011.

The defendant, a Queensland based barrister, was aware of the Coroner's Court findings when he published two statements about the plaintiff's involvement in Tyler's death on pages of his website (which was focussed on Tyler's death) in 2012.  The plaintiff alleged that the natural and ordinary meaning of these statements included that: the plaintiff had executed, shot and killed, gunned down, and chose to shoot Tyler; used excessive force out of proportion to the threat posed by Tyler; and committed manslaughter by shooting Tyler.

The defendant denied the plaintiff's repeated requests for an apology although he did modify the relevant pages of his website and ultimately closed the website down.  After amending his defence a number of times prior to trial, the defendant denied that the publications were defamatory, denied that the plaintiff was entitled to aggravated damages and sought to rely on the defence of triviality (ie that it was unlikely in the circumstances that the plaintiff sustained any harm).  The defendant maintained the defence of justification (ie truthfulness) until shortly before the trial.

Decision

A jury found that the publications were defamatory and the defence of triviality was not established.

His Honour Justice Bell ordered that the defendant pay the plaintiff $150,000 in damages, including aggravated damages.  His Honour found that certain aspects of the defendant's conduct of his defence had been improper and unjustified and, even though the scope of publication had not been large, the jury had found that the defamatory content had been grave.

Read more about compensation awarded to a woman who was the subject of sexually explicit Facebook posts here or about the tweet that led to former Treasurer Joe Hockey being awarded $200,000 here.

If you would like to know more about the law of defamation please contact:

Max Steed
Solicitor

Anna English and Dianna Gleeson
Managing Principal Solicitors

Tweets aren't cheap

This case illustrates the great care that must be taken when drafting short, sharp publications intended for dissemination on either social or traditional media platforms.

In Hockey v Fairfax Media Publications Pty Limited, handed down on 30 June 2015, Justice White of the Federal Court of Australia found that Fairfax Media had defamed Federal Treasurer Joe Hockey and awarded him $200,000 in damages. The judgment makes for interesting reading.

The case concerned articles, tweets and a poster published by the Sydney Morning Herald (SMH), The Age and The Canberra Times. The articles stated that Mr Hockey was providing 'privileged access' to a 'select group' in return for donations to the Liberal Party. The tweets and poster acted as sign-posts to the articles through use of the phrase 'Treasurer for Sale' and similar.

Mr Hockey sued the papers' corporate arm, Fairfax, for defamation in three proceedings, which were heard together.  He asserted that the publications contained defamatory imputations (e.g. accusations or meanings), including that he had acted corruptly (the relevant imputations).

Did the publications contain the relevant imputations?

Fairfax conceded that the relevant imputations would be defamatory, but denied that the articles, tweets and poster conveyed them. The contest between the parties turned on this point.

In determining whether the articles, tweets and poster conveyed the relevant imputations, Justice White adopted the customary 'reasonable person test' as his starting position. His Honour queried whether the 'ordinary, reasonable reader would have understood the matters complained of in the defamatory senses pleaded' and, in doing so, made several handy comments about the nature and disposition of our hypothetical friend (see paragraphs 63 - 73 for more on this).

Ultimately, his Honour concluded that the ordinary, reasonable person would not have understood the articles to have conveyed the relevant imputations about Mr Hockey, but would have understood two of the tweets and the poster to have done so.

The key distinction between the articles, tweets and posters, in his Honour's judgment was the context that the authors of the articles were able to provide in drafting them. His Honour found that individual passages of the articles, when read in isolation, could be understood as conveying a defamatory imputation.  When the articles were read as a whole, however, his Honour found that those passages were 'cured' - that the ordinary, reasonable reader, after reading the articles in full, would arrive at a more nuanced conclusion that did not defame Mr Hockey. 

The tweets and posters were a different story. Without the benefit of context, Justice White found that two of the tweets and the poster were undoubtedly defamatory. His Honour did not consider that the hyperlinks contained within the two relevant tweets provided sufficient context since, on the evidence, a substantial number of people viewed the tweets without clicking on them. The third tweet that contained an embedded version of the article was, however, deemed to contain sufficient context and, for that reason, was not regarded as defamatory.

Defence of qualified privilege did not apply

The statutory defence of qualified privilege, and the extended form of qualified privilege recognised in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 were found not to apply because, in his Honour's view, the publications were not reasonable, and appeared to have been motivated by an improper motive that would prevent the defence from succeeding.

His Honour considered the application of the defences to each of the articles, tweets and posters. Mr Hockey conceded, as part of this consideration, that the subject matter of the articles, tweets and poster was a matter of public interest, and that imputations contained in the publications were conveyed in the course of providing the public with information on that subject. The application of qualified privilege therefore centred on the third element of the defence - whether, in all of the circumstances, Fairfax's conduct was reasonable.

His Honour considered a range of factors, some from statute and others from common law (see paragraphs 227 - 230 for more on this), as part of this enquiry. Ultimately, his Honour  concluded that Fairfax had not acted reasonably in publishing the articles, tweets or poster. 

The most relevant consideration in respect of the articles was the steps Fairfax had taken to obtain a response from Mr Hockey before publishing them - steps which, in his Honour's view, were inadequate. The most relevant consideration in respect of the tweets and poster was the availability of alternative, non-defamatory modes of expressing the same point -  that Fairfax could have used words like 'Hockey: donations and access. Herald investigation', or other non-defamatory phrases, without losing effect.

His Honour also considered whether, in the event qualified privilege were deemed to apply, it would be vitiated by the presence of an improper motive by  Fairfax. The issue of an improper motive arose from several emails and texts sent between Fairfax editors and journalists, which included an instruction that the story be 'nailed to a cross'.  His Honour concluded, on the basis of this exchange, that the articles, tweets and poster had been actuated by SMH editor-in-chief, Darren Goodsir's, personal animus towards Mr Hockey, and that qualified privilege would therefore have been defeated, if it had applied.

To refresh your memory on best practice for members of the VPS on social media see our previous blog When is it ok for a public servant to tweet political opinions?

If you would like advice about this case, or about defamation law and its application to you,  please  contact:

Will Yates 

Solicitor

Dianna Gleeson

Managing Principal Solicitor