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No tort for breach of privacy in South Australian epic: Sands v South Australia [2013] SASC 44

Posted on April 18, 2013 by Justin Castelan

In a trial that ran for 55 days late last year and concluding in February this year, the plaintiff, Derick John Sands, has lost his claim for defamation, as well as other claims including a breach of confidence and a breach of his right to privacy.

The plaintiff had already sued Channel 7 and the ABC and lost [2009] SASC 215; (2009) 104 SASR 452. His appeal to the Full Court in that case was dismissed [2010] SASC 202, and his application there for special leave to appeal to the High Court was dismissed [2011] HCA Trans 20 (11 February 2011). So this was no stranger to litigation.

The case came from an unsolved murder in July 1997. In terms of background, the plaintiff is a photographer who had lived in South Australia all his life. He worked with Messenger Newspapers from 1988 until July 2004 and in his private time, he worked as a freelance photographer.

Corinna Marr was a receptionist for a firm of land agents. A salesman there did some business with Messenger Newspapers and wanted some business cards made. He approached the plaintiff to do that work. As a result, the plaintiff met Ms Marr in May 1995 and a friendship developed. She got married in January 1996, but the plaintiff kept visiting and on two occasions they had full day outings together, for photo shoots to assist Ms Marr in developing a modeling career. The question of the status of their relationship, and particularly whether it was sexual in nature or not, was a matter of dispute at trial.

On 4 July 1997, Ms Marr was shot dead in her unit. She had left work early that day and her husband found her dead at 4.02 pm. Later investigations estimated that the time of death was between 2.30 and 3pm that day. No-one has ever been charged with the murder.

The murder had substantial media coverage at the time. The Officer in charge of the investigation was Detective Keane. He observed there had been no forced entry at the Marr’s home, there was no robbery and there had been no sexual assault. No weapon was ever found. Statements were taken from a number of people who were considered suspects.

The plaintiff said that he went to the police station the following week to offer assistance. He gave a statement and his alibi was that he was in the Messenger Newspaper office at the time, processing his photos.

Detective Keane said that between 1998 and 2002, he received information that heightened his suspicion that the plaintiff was guilty of the murder. Apparently the plaintiff was not in the Messenger office for some time of the afternoon of the murder. The plaintiff was interviewed at length on 8 October 2002 and admitted that he may have left the office for a drink or some lunch. After that interview, the plaintiff became a suspect.

On 24 January 2004, the plaintiff’s home was searched and he volunteered to give a sample of his DNA, but not his fingerprints. On 25 February 2004, the SA police force applied for an order under the Forensic Procedures Act that the plaintiff be ordered to give his fingerprints and handprints. Sections 47 and 48 of that Act provided that no person who came into information as a result of such an application could disclose that information unless certain conditions were met. This was the basis for the plaintiff’s claim for breach of the tort of privacy.

The plaintiff alleged that the affidavit in support of the Forensic Procedures Application was leaked to the Adelaide Advertiser and that this was the first publication on which he sued. An article was published in that newspaper on 28 February 2004, but it did not name the plaintiff. Nor did it describe him. It said that the application would be heard on 2 March.

On 2 March 2004, the Forensic Procedures application was heard in the Magistrates Court. The plaintiff was named in the course of the application and his name was included in the causes list. No application for a suppression order was made.

The plaintiff was legally represented at the hearing, although he was not there. The orders were made by the Magistrate on 2 March 2004 and there was substantial media coverage of it, although the identity of the suspect could not be published and was not.

The next day, Detective Superintendent Mick Symons held a press conference to reveal that the fingerprints obtained did not match the unidentified fingerprints found at the crime scene. He said the person (although the plaintiff was not named) would remain a suspect.

The plaintiff alleged that by reason of him being named in the Magistrates Court during the application, people became aware that the first article referred to him.

The next article sued on was published in the Adelaide Advertiser the next day. Again, the plaintiff was not

Corinna Marr

named, but was described as the main suspect. After that, the further publication sued on was the press release on 3 March. The release did not name the plaintiff but referred to the “person nominated in the affidavit supporting the application for the order”. At the press conference, reference was made to a “34 year old professional photographer”.

The plaintiff sued the State of Australia for the actions of the SA Police Force, and also sought to attribute liability to the State for the publications in The Adelaide Advertiser. The trial, having been stayed while the plaintiff ran his case against Channel 7 and the ABC, commenced in September last year.

Publication

The first question was whether the State was responsible for the leak. The journalist would not name his source and Her Honour Justice Patricia Kelly found that the plaintiff did not prove that there was an unauthorized leak from the Police Force [101]. In conclusion, the source may have come from the Courts Administration Authority, so the Police, and hence the State, were not liable then for the articles published. One might ask if the State could be liable for any actions by a person at the Courts Administration Authority, but that did not seem to be addressed. In any event, Kelly J went on to consider other submissions that were raised in the course of the trial.

Identification

The next issue was the media release and the press conference. Her Honour found that there was an inference that at least one person understood the references in these to be references to the plaintiff [106], but there was no grapevine effect so that this did not become known to the public [116-117].

Her Honour found that the plaintiff proved publication in relation to both the media release and the press conference, but only to those members of the media who were present at the press conference and who were under a clear obligation of confidentiality with regard to the plaintiff’s identity by virtue of s.48 of the Forensic Procedures Act.

The imputations

Without going into all of the imputations for all of the asserted publications, broadly, the plaintiff’s imputations revolved around the following:

(a) There are strong grounds to suspect that the plaintiff murdered Corinna Marr;

(b) Alternatively there are reasonable grounds to suspect that the plaintiff murdered Corinna Marr;

Defences: Absolute Privilege and Qualified Privilege

The first question here was whether the press conference and the media release were covered by absolute privilege because they were for the purpose of soliciting information from the public and solving the murder. Her Honour found that the statements were not covered by absolute privilege [198].

As for qualified privilege, this was based on the reciprocal duty-interest argument, ie. The police had a duty to publish and the people of the State had an interest in receiving the information about the status of the investigation into the murder of Ms Marr.

Justice Kelly concluded that the press conference did not attract qualified privilege, but in any event, the publication went beyond the occasion of any such interest. The Police had to keep the public informed of the state of the investigation [213], but did not have a duty to state things like: “…. It was a cold blooded killing virtually on an execution style…. The murder of Ms Marr was particularly cold blooded – the person who committed this murder had no feeling for her or her family.”

Defences: Justification

Her Honour ultimately did not accept the plaintiff as a witness of truth [241, 302, 311]. Not a good start when the defendant has pleaded truth. Justice Kelly concluded that there could be no reliance on the plaintiff’s evidence on important matters, where it was not supported by other reliable evidence.

As for the justification defence, at [561] Her Honour stated: “The issue for determination in this trial is not whether the plaintiff is guilty of the crime of murder, nor even whether there is a case to answer against him. The issue is whether, objectively judged, there was evidence as at March 2004 which constituted reasonable grounds to suspect that the plaintiff murdered Ms Marr and whether there was evidence which supported the conclusion that the plaintiff had conducted himself in such a way as to warrant that suspicion”

Her Honour then referred to the evidence that supported that conclusion, including:

Circumstances surrounding the entry into Ms Marr’s home indicated it was probable that whoever killed her knew her;
The plaintiff was sexually attracted to Ms Marr and Justice Kelly was satisfied that he acted on that attraction;
Her Honour found that the plaintiff lied to Detective Keane on 8 October 2002 on the topic of his relationship with Ms Marr and so lied to the police in his statement on 30 August 1997;
Her Honour was satisfied that the plaintiff spoke with Ms Marr on the morning she was murdered;
Her Honour found that the plaintiff lied to the police about his whereabouts on the afternoon she was murdered.

South Australian Supreme Court

Accordingly, Justice Kelly concluded that there were reasonable grounds to suspect the plaintiff of the murder, and the evidence supported the conclusion that the plaintiff’s conduct warranted reasonable suspicion and the defence of justification succeeded [575].

Plaintiff’s claim for defamation dismissed.

Breach of confidence: The tort of breach of privacy

The plaintiff alleged that the circumstances surrounding the bringing of the application under the Forensic Procedures Act gave rise to a duty of care, a duty of confidence and duty of privacy on the State:

Not to disclose any information obtained through the conduct of the forensic procedures;
Not to publish any other information tending to identify the plaintiff as the subject of a forensic procedure application;
To take reasonable steps to protect the plaintiff’s anonymity as the person the subject of the Forensic Procedure application.

The plaintiff alleged the duties were breached by publishing to The Advertiser the application and affidavit of Detective Keane, or publishing the fact of the existence of those documents, failing to make application to ensure that the plaintiff’s name was not published in the causes list and failing to apply to the Court for a suppression order.

Sections 47 and 48 of the Forensic Procedure Act provided that persons who had or had access to information through the conduct of forensic procedures under the Act must not disclose the information unless certain conditions were met, and section 48 provided a criminal sanction for breach of any such obligation.

Justice Kelly did not devote much to the question of the possible existence of the tort of breach of privacy. Her Honour held that the High Court stated in ABC v Lenah Game Meats Pty Ltd that it would require a further development in the law to acknowledge the existence of a tort and so it does not exist yet [614]. That is no fun.

Regardless, Her Honour held that the defendant never disclosed any private information about the plaintiff in the context of making the application under the Forensic Procedures Act [616]. The only disclosures made were in the course of taking lawful steps in the course of the investigation.

Damages

Justice Kelly also discussed what damages would have been awarded, had the plaintiff been successful and concluded that they would have been heavily discounted and minimal [631,637]. In any event, the plaintiff’s claim was dismissed.

So after 55 trial days, the plaintiff, tail between his legs, has failed in his claim. Whether he will go again to the Court of Appeal, notwithstanding the credit findings made against him, remains to be seen.

Posted in Absolute privilege, Damages, Identification, News, Privacy, Publication, Reciprocal duty-interest, Trial, Truth | Tagged newspaper, tv | 1 Comment

Hong Kong newspaper keeps its damages: Oriental Daily Publisher Ltd & Kwan v Ming Pao Holdings Ltd & Ors, in the Court of Final Appeal of the Hong Kong Special Administrative Region, Final Appeal No. 1 of 2012, 26 September 2012

Posted on April 12, 2013 by Justin Castelan

As common as Hayley’s Comet, in Hong Kong, the defamation jury trial appears about once every 80 years. So although this particular decision was some months ago, I don’t think I will be around in 2093 for the next one, so I had better report on this one quick.

Hong Kong

The story in itself is unusual. For starters, the Oriental Daily News, a Hong Kong daily with a circulation of around 110,000 (and probably the defendant in the last defamation case in 1933), was in this case, a plaintiff. What happened was this.

On 28 September 2001, Ma Chiu Sing phoned police and told them that he had put poison into cup noodles that were on sale in a certain supermarket. Police went there and discovered one such item with poison. On that same day, the Oriental Daily News got a letter written by Chiu Sing, who referred to himself as the “Hong Kong Bin Laden”. The letter said that he had poisoned the food and told police of its location and he demanded the resignation of certain public figures, otherwise he would poison more food and tell no-one where it was. The letter said:

“And the poison will not be kid’s stuff like this time. The locations of the poisoning next time may be in restaurant, may be water heater in canteens and etc… One person, ten persons, or one hundred persons may be killed next time…”

Similar letters were sent to other daily newspapers. He then phoned a journalist at the Oriental Daily News and said he was annoyed that his letter did not get more publicity. Later that day he called back and said he had poisoned some chocolate in a city supermarket and he wanted the threat to be reported. The poison was found.

On 2 October 2001, Chiu Sing’s reign of terror ended. He was arrested and in December 2002 he was convicted at trial, where he got 6 years and 8 months jail. He was released from jail in June 2006 and in the 2 months following, he sent 5 threatening letters back to the Oriental Daily News, leading to another conviction, this time for criminal intimidation in June 2007. He got a further 9 months in jail and was released from jail on 15 March 2008.

Around one month after being released for a second time, Chiu Sing mounted a demonstration outside the High Court Building. He wore a cap, dark glasses and a surgical mask. He had a banner with him, which was in Chinese and said this:

“Is there still rule of law in Hong Kong?

Wrongful imprisonment! Bribery! Contract Killing!

Since I, Ma Chiu Sing was discontented that the founders of the Oriental Daily News, Ma Sik Yu and Ma Sik Chun, despite being members of a narcotics trading family and having caused harm to countless people and are on the wanted list, could still get off scot-free and enjoy the rest of their lives and pass their fortunes to their descendants. I had thus submitted an article to the complaint column of Oriental Daily News …… To my astonishment, Oriental Daily News and members of the Ma Family such as Ma Ching Kwan did not deal with the relevant complaint by lawful means, for instance, if they considered what I stated to be fabrications, they could have commenced a civil suit against me. Instead, not only did they fail to handle the matter by such means, they went so far as to fabricate a blackmail letter for 5 million to frame me up.”

The next day, another daily newspaper in Hong Kong, Ming Pao, ran an article with a photo of Chiu Sing and showing the banner. The caption said “`Hong Kong Bin Laden’, Ma Chiu Sing demonstrated and distributed leaflets outside the entrance of the High Court Building yesterday, alleging that earlier someone had planted evidence to frame him resulting in his wrongful imprisonment.”

The first plaintiff

The plaintiffs sued, not for anything in the article that was published by Ming Pao, but for the publication of Chiu Sing’s banner. The first plaintiff was the publisher of the Oriental Daily News and the second plaintiff was Ma Ching Kwan, its chairman.

The plaintiffs asserted the following imputations from the banner:

That they had forged evidence in order to falsely incriminate Ma Chiu Sing;
That they had entered into a conspiracy with a prosecution witness, bribing him to give false evidence against Ma;
That they had perverted the course of justice, resulting in Ma’s imprisonment for criminal intimidation.

The nub of the defence was that the defendants argued that because the banner was written by the self-proclaimed “Hong Kong Bin Laden”: no-one would have believed it.

However, this argument did not work so well in the first trial: The plaintiffs won HK 1,650,000 between them (1,500,000 for the individual and 150,000 for the company) and a further HK 150,000 for aggravated damages as well.

Ming Pao appealed to the Court of Appeal, which set aside the verdict and installed its own assessment of the damages at HK 200,000 between the plaintiffs (150k for the individual and 50k for the company). Also, the awards for aggravated damages were set aside.

The plaintiffs then appealed this judgment to the Court of Final Appeal and tried to get the trial judge’s tattslotto verdict restored.

Liability was not an issue on the appeal, the question was whether the Court of Appeal was correct in reducing the damages awards. The appellants bore a heavy onus, as they had to show that the Court of Appeal was “plainly wrong”.

The Court of Final Appeal looked at a range of factors, including that:

It was a repetition case where the accusations reported were of very low credibility;
Ming Pao did not adopt or affirm Ma’s allegations, but disavowed them 3 days later;
The content of the banner was not shown in its entirety;
There was no evidence that the Oriental Daily News’ circulation had reduced;
There was no evidence that Kwan’s feelings were hurt;
There was no viva voce evidence by either side at the trial, so the Court of Appeal was in the same position as the trial judge;
Given that Chiu Sing referred to himself as “Hong Kong’s Bin Laden”, this would have raised doubts as to his credibility in the mind of the ordinary reasonable reader;
The reader would have also seen that Chiu Sing had just gotten out of prison, having been sent there for criminal intimidation against the Oriental Daily News, so clearly, he would have had an axe to grind against it.

The main question was whether the poor credibility of the accuser ought to be taken into account. The Court concluded that it certainly was a factor in determining damages. It went to the extent of harm suffered, and in some instances, such a lack of credibility could even negate damages entirely. But not in this case, the Court of Appeal’s verdict was sound.

In conclusion, it was open to the Court of Appeal to set aside the trial judge’s verdict and install its own award of damages, The Court of Final Appeal agreed that the trial judge’s verdict was manifestly excessive, and that it was not a case for aggravated damages. The Appeal was dismissed.

So for Hong Kong’s defamation practitioners, they can take a break after that heavy workload, and steel themselves for the next defamation case in 80 years time. It will probably have something to do with a flying car.

Posted in Damages, Defamatory meaning, Trial | Tagged foreign language, newspaper | Leave a comment

Google Australia not a publisher: Rana v Google Australia Pty Ltd [2013] FCA 60

Posted on March 28, 2013 by Justin Castelan

In asserting that it is not a publisher of its search engine results, Google has at last had a win, of sorts, in the Federal Court. But the win was not as emphatic as Google would have liked, and certainly does not restore Google’s position to where it was 12 months ago.

Right now, Google LLC in America, once notified of defamatory material that it links to, is to be treated as a publisher of that material. However, Google Australia Pty Ltd, thanks to Mr Rana here (and a few others over the last couple of years) will not.

In this case, Ranjit Shamsher Jung Bahadur Rana sued Google Australia Pty Ltd, Google Inc and 2 other defendants who were authors of a number of websites that were allegedly defamatory of him. The websites were about things like cyberstalking, the psychology of stalking, personality disorders and the like. They were all hosted by Google.

Rana applied to the Federal Court for leave to serve proceedings overseas on Google Inc, and meanwhile, Google Australia applied to strike out the claim against it, on the basis that the claim had no reasonable prospects of success.

Rana also sued, claiming that Google’s activities contravened the Disability Discrimination Act and the Racial Discrimination Act. Justice Mansfield stated that Rana’s application did not make it clear what his complaints actually were, but the application referred to websites that broadly included the following statements:

Rana is an alcoholic with brain damage;
Rana has genetic personality problems;
Rana is an unclean thing that no woman wants to be around;
Rana is a continual bankrupt;
Rana receives extortion money, which he sends to `lovely Russian girls’ – `a loving financee’;
Rana is a cyberstalker;
Rana used Nina Gregurev’s email address to create a false Facebook account;
Rana sends emails out in other people’s names and has done so for at least 15 years;
Rana’s daughter has said to him to `get a job you lazy bum’.

Google Australia was sued because it was submitted by Rana that it was the owner and operator of the domain name, google.com.au. Other than that, it was not clear what the claim against Google Australia was, apart from the fact that the domain name was Australian and Google Australia was a subsidiary based in Australia.

Google Australia filed affidavit material which stated that:

A search engine enables automated search processes on keywords according to pre-programmedalgorithms, to list hyperlinks to webpages in an order determined by assessed relevance;
A search engine can be programmed to block a specific webpage;
If that occurs, the webpage is still accessible on the internet;
Google Australia is a wholly owned subsidiary of Google International LLC and Google Inc is the ultimate holding company;
Google Australia is not authorised to, and has no ability to, control or direct the conduct of Google Inc and is not responsible for the day to day operations of Google Inc;
Google Inc owns and operates the domains google.com.au and google.com. The search engines at those domains are exclusively provided by, operated by and controlled by Google Inc;
Google Australia does not have any ability to control or direct action in respect of blocking URLs from google.com.au.
Google Inc owns and operates the business that supplies the Google Web Search and Google Images products.

Rana had no evidence that Google Australia was the owner of the relevant search engines, nor that it had any control over its use or management.

His Honour Justice Mansified referred to a similar strike out application brought in a NZ case by Google NZ (A v Google New Zealand Ltd [2012] NZHC 2352 at [44]), where the Court concluded that the operation and control of the Google search engine resides with Google Inc and not Google NZ.

Accordingly, His Honour concluded that Rana had “no reasonable prospect of proving that Google Australia owns the domains in question, or that it has the ability to control or direct the conduct of Google Inc” [40]. The case against Google Australia was then struck out.

As for Google Inc, it also had a win of sorts. His Honour concluded that Rana’s claim for disability and/or race discrimination had no prospects of success [47] and struck that out. In terms of Rana’s defamation claim against Google Inc, His Honour did not make a final judgment, but did state that it would not be appropriate to refuse leave to serve overseas on the basis of Google Inc’s argument that it was not a publisher of the material [58].

However, His Honour concluded that Rana’s statement of claim was so vague that it did not comply with the pleading rules, and that if he were to grant leave to serve overseas, that was conditional on Rana fixing the statement of claim and also paying $8,000 into court as security for Google’s costs to respond to the statement of claim [82]. Harsh. Anyway, His Honour then stated that the application would be adjourned for those conditions to be met, and then there would be further consideration of the application.

Whether that is the last of this matter then, remains to be seen.

Posted in Publication, Strike out application | Tagged blog, Google, internet, Racial discrimination | Leave a comment

Google wins but loses again, now in UK: Tamiz v Google Inc [2013] EWCA Civ 68

Posted on February 28, 2013 by Justin Castelan

The Appellant

Payam Tamiz, an English Conservative politician who had been running for the local elections in Thanet, sued Google for anonymous comments on a blog that was created on Google’s blogger platform, “London Muslim”. The comments were posted between 28 and 30 April 2011 and were defamatory of Tamiz. They included allegations that Tamiz was a drug dealer, had stolen from employers and was hypocritical in his attitude towards women.

Tamiz first notified Google on 28 or 29 April 2011, when he used the “Report Abuse” function. He later sent a letter on 29 June, which was received on 5 July. Google emailed Tamiz on 8 July and asked if the comments were untrue. Tamiz replied yes, they were false and defamatory and on 19 July, Google emailed him back and asked if it could send his complaint to the author of the blog. Google also said it would not be removing the comments itself. Tamiz gave permission on 22 July, and on 11 August, Google emailed the blogger. On 14 August, the blog and all of the comments were removed.

Tamiz brought proceedings against Google Inc and Google UK for defamation. Those proceedings were initially struck out by Justice Eady. This was on the basis that Google Inc could not be deemed a publisher of material on its blogger platform. It was also struck out because Eady J considered that Google had a defence under section 1 of the Defamation Act 1996, because it took reasonable care in passing the complaint to the blogger and another defence on the basis that the publication was so trivial that it did not constitute the commission of a “real and substantial tort” by Google Inc. This decision was the one that Google turned to, when facing defamation cases all around the world.

Regardless, Tamiz appealed, and the matter came before 3 judges of the Court of Appeal on 3-4 December 2012. Judgment was delivered on 14 February, the main reasons written up by Lord Justice Richards, with whom Lord Justice Sullivan and the Master of the Rolls agreed.

Richards LJ referred to Eady J’s decision, as well as previous decisions. At [23]:

“In my view, the judge was wrong to regard Google Inc’s role in respect of Blogger blogs as a purely passive one and to attach the significance he did to the absence of any positive steps by Google Inc in relation to continued publication of the comments in issue. “

After all, Google offered design layouts for the blog, it provided a related service to enable ads to be placed on the blog, and it had the power and capability to remove or block access to offending material.

Richards LJ agreed that Google was not a primary publisher of the material, and until such time as it was notified of it. Without notice, Google would probably have the defence of innocent dissemination. However, once Google was notified of defamatory material, the situation was different. At that point, once it had a reasonable period to take the material down, it was then arguable that Google was a publisher [31], [35]. Justice Eady was wrong to strike the case out on that point.

In terms of the defence under section 1 of the Defamation Act, Richards LJ concluded that Eady J was wrong with that one as well. Although it was agreed that Google was not a “commercial publisher” within the meaning of the section and it did not have “effective control” over the person who posted the defamatory comments, as to whether Google took reasonable care in relation to the continued publication of the comments, Google had not done so, because it did not take down the comments after it received the communications from Tamiz. Therefore, the defence did not apply.

So at this stage, being paragraphs 1- 48 of a 54 paragraph judgment, things were looking good for Tamiz.

But the final 6 paragraphs, including separate one-line paragraphs from Sullivan LJ and the Master of the Rolls that consisted respectively of “I agree” and “I also agree”, were not good for him.

The Court agreed with Eady J that the publication was so trivial that there was no “real and substantial tort”. The basis was this:

The blog went up on 27 April 2011;
The comments were posted on 28-30 April 2011;
They were followed by numerous other comments, “and whilst still accessible, will have receded into history”;
The earliest point when Google would become liable is some time after notification of the complaint to them;
It was highly improbable that any significant number of readers would have accessed the comments after that time.

A bit harsh.

Tamiz pressed the “Report Abuse” function around 28 April, but nothing seems to be made of that. It was barely mentioned. He then wrote on 29 June and the comments stayed up until 14 August. It is not clear what the basis was for concluding that no significant number of readers would have accessed the comments. Perhaps the judges had some Search Engine Optimization experience and felt that the site would not rank on the first page for Google’s search results. Perhaps they just thought that because there were other comments, no-one would have read the defamatory ones. It all sounds pretty speculative.

In any event, the appeal was dismissed and although there is now English authority for the proposition that Google Inc can be deemed to be a publisher of material on its blogger platform (and hence probably its search results as well), Tamiz won’t care. He has been left with a huge costs bill and a judgment that concludes that his complaint was so trivial that there was no wrongdoing by Google, even if it was the publisher. Ouch.

Posted in Publication | Tagged Appeal court, blog, Google, internet, politician, search engine, UK | Leave a comment

Google wins ACCC battle in High Court, but has it lost the defamation war?: Google Inc v ACCC [2013] HCA 1

Posted on February 19, 2013 by Justin Castelan

In 2012, the Full Court of the Federal Court held that Google engaged in misleading or deceptive conduct, in breach of s.52 of the Trade Practices Act because if a person searched for four particular businesses, misleading or deceptive sponsored links (from competitors) were produced.

For example, if a person did a Google search for “Harvey World Travel”, they would get this sponsored link:

“Unbeatable deals on flights, Hotel & Pkg’s Search, Book & Pack Now! www.statravel.com.au”.

The Appellant

If you are not an Australian Backpacker, student or hippie traveller, then you may not know that STA Travel is actually an entirely different travel agency to Harvey World Travel. They are competitors. Nonetheless, some computer savvy person at STA added the words “Harvey World Travel”, to STA’s Google AdWords account. Sort of like a Pepsi person adding the word “Coke”. Clever.

The other three examples followed similar lines. They were clearly misleading advertisements, and the advertisers themselves had clearly engaged in misleading or deceptive conduct.

The question was this: Was Google liable for engaging in misleading or deceptive conduct as a result of the production of the sponsored links? Did it make the representations?

The High Court unanimously disagreed with the Full Federal Court and Google got off.

In the main judgment, French CJ, Crennan J and Kiefel J concluded that Google did not author the sponsored links, it merely “published or displayed” them. Their analysis centred around whether, to establish misleading conduct by Google, it had adopted or endorsed the representations (Hayne J concluded that this was not required, but let Google off as well for other reasons).

Google contended that ordinary and reasonable members of society would have understood that Google did not adopt or endorse the representations in the sponsored links, and therefore, should not be liable for them.

The High Court concluded that Google had no control over a user’s choice of

High Court

search terms or an advertiser’s choice of keywords , and was not the producer of the sponsored links. The advertiser was the author and people would have understood that Google had nothing to do with the misleading or deceptive conduct done by them.

So Google’s production of sponsored links did not equate to misleading or deceptive conduct. The question remains for media lawyers: Is Google a publisher of its organic search results?

In defamation law, Google has always contended that the production of its search results did not equate to publication. In England, it has been successful on that point and has had defamation claims struck out (although overturned on appeal in the last week or so) but in Australia, a jury last year held that it was a publisher.

In this case, Google conceded that it did publish the sponsored links. Why it did so is not clear. It will probably argue that such a concession was made in the Trade Practices setting, so does not equate to a concession in a defamation case.

Or Google may have been trying to limit the High Court’s consideration of the point, by admitting to having published the sponsored links and thereby preventing the High Court from specifically deciding that point. It would then possibly try and argue on another day (again in the context of a defamation case) that the organic results were somehow different, because they were not paid for.

But for Google, the High Court made this unhelpful statement at paragraph [69]:

“That the display of sponsored links (together with organic search results) can be described as Google’s response to a user’s request for information does not render Google the maker, author, creator or originator of the information in a sponsored link. The technology which lies behind the display of a sponsored link merely assembles information provided by others for the purpose of displaying advertisements directed to users of the Google search engine in their capacity as consumers of products and services. In this sense, Google is not relevantly different from other intermediaries, such as newspaper publishers (whether in print or online) or broadcasters (whether radio, television or online), who publish, display or broadcast the advertisements of others. The fact that the provision of information via the internet will – because of the nature of the internet – necessarily involve a response to a request made by an internet user does not, without more, disturb the analogy between Google and other intermediaries. “

There you have it. According to the High Court: Google is the same as a newspaper, radio or television. None of them may be the makers, authors, creators or originators of the information, but they are all publishers. This is regardless of what fancy automated top secret algorhythm Google may use, it is still a publisher.

Not sure that Google will be so keen to litigate in Australia now…

Posted in Publication | Tagged Appeal court, Google, hyperlink, internet, search engine | 1 Comment

The Movie Star and The Virgin Astronaut win: Rocknroll v News Group Newspapers Ltd [2013] EWHC

Posted on February 8, 2013 by Justin Castelan

Edward Rocknroll

Edward Rocknroll is the nephew of Richard Branson, and used to be the head of marketing, promotion and astronaut experience at Virgin Galactic. That job ended in 2010, but while The Sun claimed that Rocknroll was a public figure, Justice Briggs stated: “the claimant was, so far as the evidence goes at this stage, no more than a not very conspicuous middle manager in his uncle’s private business empire.”

Last December though, Rocknroll married Kate Winslet, well known actress, and star of “Titanic”, a movie that was so long that you could go out for a 3-course meal in the middle and still miss nothing. Regardless, I look forward to the next epic starring Kate Rocknroll-Winslet.

Anyway, in 2010 Rocknroll was at a private party and you don’t have to be Einstein to see where this is going. His name is Rocknroll. He was at a party…. Yes that’s right,he was photographed half naked being a dill.

The photo was taken by Mr Pope (Could the names in this case possibly get any sillier?). The Pope put the half naked Rocknroll photo on his Facebook page. He had some privacy settings on it and the public could not see it, but his 1500 friends could. Mind you, they were probably all at the party.

Years later, it gets to the first week in January 2013 and The Sun, fresh from not having been invited to the Rocknroll Wedding of the Year, and no doubt reeling from the fact that they only found out about it days later, got hold of the photo and notified Rocknroll of its intention to publish, possibly underneath the caption “Its Still Rocknroll to Me”.

Rocknroll went to court to stop it. He relied on his right to privacy under Article 8 of the European Human Rights Convention.

The questions for the judge included these:

The first stage is to ascertain whether the applicant has a reasonable expectation of privacy;
The protection may be lost if the information is in the public domain;
If Article 8 is engaged, then one must balance the right to privacy against the right of freedom of expression in Article 10;
In balancing those rights, look at the contribution that the photos and articles would make to a debate of general interest.

The Sun ran all sorts of arguments. It claimed:

Rocknroll was a public figure in the social sphere, so had a limited right to privacy;
Rocknroll waived his right to privacy because he sold the story of his first marriage in 2009;
The photos came into the public domain, because they were on Facebook;
To suggest that harm could be caused to Kate Winslet’s two children was speculative.

The Happy Couple

The judgment was an emphatic win for Rocknroll. Yes, he did have a reasonable expectation of privacy. The photos were taken at a private party in a private place. Further, Rocknroll was not a public figure, and had not sought publicity for his wedding to Winslet.

In terms of the Facebook publication, no internet search of Rocknroll would have revealed the photos, nor even a simple search of The Pope’s wallpage or homepage. Therefore, Rocknroll could still maintain the right to privacy in the photos.

In balancing the right to privacy with the right to freedom of expression, the judge concluded there was nothing in the pictures that would contribute to public debate about matters of genuine public interest. While The Sun argued the fact that the pictures were on Facebook and that in itself might do so, that argument was disregarded and the judge concluded this [35]: “the defendant’s wish is simply to satisfy the interest of its readership in the private peccadilloes of the rich and famous or (in this case) of those associated with them, rather than to contribute, as watchdogs to public debate.”

The judge concluded that if the photos were published, there was a grave risk that Winslet’s two children would be ridiculed at school about their new step-father’s conduct, and that could seriously damage the caring relationship which Rocknroll is seeking to establish with them.

So the right to privacy prevailed. Rocknroll is King. And Kate’s children have nothing to worry about at school, not even the new hyphenated name…

Posted in Privacy | Tagged artist, newspaper | Leave a comment

Emphatic win for Aspergers’ Advocate: Gluyas v John Best Junior [2013] VSC 3

Posted on February 1, 2013 by Justin Castelan

Now 47, Philip Gluyas was 31 when he was diagnosed with Asperger’s Syndrome. On the one hand, Asperger’s can mean that a person has difficulties empathizing with people and dealing with social interactions that many people take forgranted. On the other hand, it can also mean that the person has exceptional gifts in other areas, such as a genius mind for detail, attention spans that can last for months and the ability to think so far outside the square that great inventions can result. While Aspergers sits on the autism spectrum, many of the world’s greatest thinkers and inventors probably had it (Bill Gates, Steve Jobs, Mark Zuckerberg, Isaac Newton, Albert Einstein), but that is another story.

Victorian Supreme Court

The plaintiff has become an active advocate for the rights and interests of people with Asperger’s and those who are on the autism spectrum. For that purpose, he has set up and maintained websites, where he published his views concerning the rights of members of the autistic community. Attached to his website is a forum. He has also been an AFL Umpire for 29 years and has a keen interest in football and wrestling.

The defendant, who lives in USA, was engaged in a long-running dispute with the plaintiff over the causes of autism. The defendant has also maintained websites and has published a number of entries on the causes of autism. He contends that autism is caused by mercury poisoning and can be cured by a form of treatment called chelation (not sure what that is). The plaintiff contends that the causes are congenital and are not susceptible of a cure.

But the defendant’s responses to the plaintiff went well beyond ordinary discussion or intellectual debate. They became abusive, denigrating and vitriolic. There were numerous offending articles and they claimed, among other things, that the plaintiff had a history of brutality, was severely deranged, that he abused autistic women and, like Hannibal Lecter and Adam Lanza, that he was a danger to society.

The plaintiff sued him for it. He served the defendant with proceedings in America (a big step in its own right), and the defendant then wrote to the court and repeated his attacks.

But the defendant did not appear at the trial, and the plaintiff was represented by a barrister, Mr Tim Greenway, who appeared pro bono.

The plaintiff proved that articles were downloaded and read in Victoria, by at least one other person and he also gave evidence of comments made to him, indicating that the articles were read by others as well.

In considering the content of the offending items, His Honour Justice Kaye (an enormously clever judge, and not just because he goes for Hawthorn) found that the publications contained a whole gamut of imputations including:

The plaintiff has on more than one occasion caused serious physical injury to others.
By analogy with Hannibal Lecter, the plaintiff is a mentally unwell person who poses a serious threat to the physical safety of others.
A medical authority and a court determined that the plaintiff was so physically dangerous to others, as a result of a medical disorder, that he was banned from working anywhere in Australia;
The plaintiff suffers from a serious mental disorder that causes him to be violent towards others,
By analogy with Adam Lanza, the plaintiff is a mentally unwell person who poses a serious threat to the physical safety of others.

His Honour held that these were seriously and highly defamatory of the plaintiff. The plaintiff also adduced evidence and satisfied His Honour that the imputations were not true and were “demonstrably without foundation” [36]. While he had been charged with assault once in 1999, the incident was a minor one where he had been provoked and he received a good behavior bond for it. Further, there existed no report or court finding that banned the plaintiff from working in Australia.

Then on to assessing damages.. His Honour was satisfied that the plaintiff was relatively well known, particularly among people interested in the autism spectrum. In 2008, he contributed to the development of an Autism Plan in Victoria and attended State Conferences on Autism. He had also developed a reputation for his football umpiring and his involvement in wrestling.

While the plaintiff only proved a limited number of people had read the articles, His Honour took account of the grapevine effect, and the severely hurt feelings of the plaintiff. His Honour also awarded aggravated damages because the defendant wrote letters to the court which repeated the defamatory remarks and insulted the plaintiff.

Originally, the plaintiff claimed $10,000 in his writ, but there were further publications since issuing and he was finally awarded $50,000 plus $4,375 interest. His Honour also said that it would have been considerably more, if there had been more widespread publication in Victoria.

The plaintiff will need some good luck getting the money from the USA, but a win for truth and justice nonetheless.

Posted in Damages, Defamatory meaning, Trial | Tagged grapevine effect, internet | 1 Comment

Tanzanian Tycoon’s Claim Falls Flat: Mengi v Hermitage [2012] EWHC 3445

Posted on January 21, 2013 by Justin Castelan

In 2004, Sarah Hermitage, an English solicitor, and her husband, Stewart Middleton, an agronomist, bought a lease to the Silverdale Farm in Tanzania for $112,000. They wanted to live there peacefully and build up an agricultural business, exporting vegetables to Europe. The African investment all sounded very idealistic, but the ideal for the couple did not last long.

The Claimant

Unfortunately, the person they bought the lease from was Benjamin Mengi, who happened to be the younger brother of Reginald Mengi, a man who built himself up into being a Tanzanian version of Ruper Murdoch and the Claimant in this case. Apart from owning various Tanzanian media, from 2003, he was the chairman of the Media Owners Association of Tanzania.

His younger brother, meanwhile, started a campaign of harassment against Mr Middleton from late 2004, including refusing to register the lease, threatening to kill him, issuing a number of vexatious court actions against him involving the local police and eventually chasing the couple out of Tanzania in 2008.

Middleton’s uncontradicted evidence about what happened at Silverdale Farm was of a torrid time over several years. In that time, Benjamin:

Subjected Middleton to a barrage of threats, litigation and intimidation;
Obtained the assistance of the local police to assist in this campaign, including attending at the property with Benjamin;
Refused to register the lease and insisted that it was illegal;
Demanded that Middleton pay an extra $7,000 to him, and when Middleton refused, brought charges against him for conspiracy to commit forgery;
Induced disease to the cattle on the property then sued Middleton for “psychological torture”;
Brought a whole array of other frivolous claims against Middleton;
Abused him openly in front of the police and screamed that he should go back to South Africa; and
Apparently contracted someone to kill him.

Along the way, Middleton spent 3 nights in jail on one of the charges, before being granted bail by the High Court of Tanzania on the grounds that the magistrate was biased. Two weeks later, that particular contempt of court case was dropped for lack of evidence.

Meanwhile, articles appeared in the Claimant’s IPP Media that further damaged the couple’s reputation, sensationalizing the trumped up charges which were laid against Middleton, and then reporting nothing about how those charges were dropped after Middleton’s first appearance in court.

Also along the way, Ms Hermitage wrote to the British High Commissioner

Stewart Middleton and Sarah Hermitage

seeking help. The Commissioner arranged a meeting for Middleton with the Claimant. This meeting happened on 13 December 2005 and was relevant to the trial. This was because Middleton claimed that the Claimant said he wanted to see justice done, he would support Middleton’s wish to get the lease registered, he would try and see that legal cases against him would be withdrawn, get his brother to stop the harassment, stop the defamatory articles in the papers, get his brother to stop bringing frivolous cases, he would sort it out and he would cover their legal costs.

While the Claimant agreed the meeting was amicable and he would speak with his brother, he did not agree that he said he said that he could stop articles appearing in his newspapers, as he stated he had no say in editorial policy and he did not say that he would pay Middleton’s legal costs.

After the meeting though, things did not improve for Middleton and Hermitage. They continued to face intimidation, defamatory articles continued to appear and they ultimately faced threats of death. Eventually, without any protection from the local police, who often attended the property with Benjamin, the couple were hounded from Tanzania, chased to the Kenyan border without their possessions and had to return to England, devastated by the experience.

Devastated, disempowered and exasperated, Ms Hermitage started a website in 2009. It set out their experiences on Silverdale Farm and traversed a range of issues, including the media’s attacks on the couple and what she said was hypocrisy by the Claimant.

The Claimant was not pleased. As His Honour Justice Bean ultimately remarked, he probably was not used to criticism. Anyway, he sued Ms Hermitage for a number of publications for libel. He was so serious about the case that he lodged 1.8 million pounds in security to run the case and the trial eventually ran for 10 days. He claimed basically that 3 imputations arose from the publications, namely:

Mengi encouraged IPP’s media outlets to conduct a campaign of deliberately inaccurate, abusive and defamatory attacks on the British investors in Silverdale Farm, which under Tanzanian law is also a crime;
This campaign of `journalistic terrorism’ facilitated Benjamin Mengi’s corruption of local officials and intimidation of the Middletons and thus helped Benjamin to destroy their investment and grab their property; Mr Mengi was in that sense complicit in Benjamin’s corruption and intimidation;
Mr Mengi lied to the British High Commissioner by making promises which he had no intention of keeping, namely:

To have the defamatory media campaign stopped;
To speak to Benjamin and `address his behaviour’;
To pay the Middleton’s costs of defending the claim brought against them by Benjamin.

The sting of the meaning was that the Claimant enabled his younger brother to do these things and was thereby complicit in corruption and intimidation.

At trial, no evidence was given by Benjamin, and the Claimant stated that he had very little to do with his younger brother. However, at no stage did he condemn his younger brother or express regret to the couple about what happened. This was damning [72].

The judge concluded that the Claimant was much closer to his brother than what he led the court to believe [64]. The fact that the Claimant stated that he did not know that his Tanzanian in-house lawyer and trusted counselor for 32 years, whose office was only one or two rooms away from the Claimant’s office, also happened to be Benjamin’s lawyer in one of the vexatious suits brought against the couple, did not help either. On this basis, the judge concluded that the Claimant either encouraged, knew or approved of the lawyer’s decision to act for Benjamin in litigation against Middleton [71].

No-one disputed that the media coverage was slanted and biased. The only issue was the Claimant’s role in it. Like Murdoch, he claimed he knew nothing. The actual journalist was not called to give evidence, and he might have been asked why articles were written about Middleton being charged, but nothing when the charges were dropped.

The judge concluded that the Claimant appointed a team of loyal editors who lay down the party line and would publish nothing that criticized the Claimant or his family [84]. In conclusion: “I am left in no doubt that Mr Mengi encouraged the campaign in his newspapers to praise his brother and denigrate the Middletons; and did so by making senior editorial staff aware, through Mr Nguma [the inhouse lawyer] or otherwise, of what line the journalists on the ground were expected to take.” [86]

In terms of dealing with the justification defence, there was no great treatise on the law, no short novel about the state of the law, and the judgment was short and sweet. Reginald Mengi: you lose.

The judge concluded that the Claimant did encourage the defamatory campaign, and that would have been sufficient to found personal liability under Tanzanian law “in the event – which was surely theoretical – that the authorities decided to prosecute him” [91]. The Claimant was also complicit then in Benjamin’s corruption and intimidation.

As for the third imputation, while it was not entirely true, it did not matter because this imputation was less serious than the other two, and so, under s.5 of the Defamation Act 1952, the defence of justification could not fail as a result.

The judge also found that the defence of reply to attack was made out, and concluded “Indeed, the reply was in my view measured, even restrained, when compared with the attack.” [103]. The claim was dismissed, and the judge ended with this at [106]:

“Mr Mengi is evidently highly sensitive to criticism, perhaps because he is not used to it. But this case recalls to mind the old French nursery rhyme:

Cet animal esttres merchant;

Quand on l’attaque, il se defend.”

In terms of who His Honour thought was the wicked animal who would defend itself, in my honest opinion, and only as a fair comment on a matter of public interest, and as a fair and accurate report of public proceedings, in all likelihood it looks like His Honour was not referring to Ms Hermitage.

In any event, in the spirit of ending in another language: Ke sera sera.

Posted in reply to attack, Trial, Truth | Tagged foreign language, internet, newspaper, reply to attack | Leave a comment

Murray Water Corporation sent down the river for $295,000: Belbin& Others v Lower Murray Urban and Rural Water Corporation [2012] VSC 535

Posted on January 9, 2013 by Justin Castelan

In the northwest of Victoria sits the orange-picking town of Mildura on the Murray River. To get there from Melbourne usually involves a 6-hour drive or a small flight on a plane with a flip-top lid. But it was there in Mildura where Justice Stephen Kaye and a jury of six heard a defamation trial that ran for 22 days and traversed the many great and wondrous issues that defamation trials can throw up.

Jim Belbin, plaintiff no.1

The case related to the First Mildura Irrigation Trust (FMIT), an icon of Mildura society. The four plaintiffs, Jim Belbin, Frank Di Masi, Don Marciano and Nancy Prevedello, were members of the Board of the FMIT and in August 2008, the Minister for Water, Tim Holding MP, made a decision under the Water Act that the defendant, the Lower Murray Urban and Rural Water Corporation (the Corporation) would take over the functions of the FMIT.

For more than 100 years, the FMIT played a central role in the foundation and development of Mildura and its surrounds. Two Canadian brothers had entered into an agreement with the government in the late 19^th century to establish an irrigation colony on the Murray River and the FMIT then provided irrigation services in the Mildura area for 110 years.

Before it was closed, FMIT proposed to upgrade the Mildura South Channel, which would cost it $4.7m. It obtained that money from the government and in April 2007, the FMIT Board resolved to draw down all of it. Shortly after that, $4.2m was invested with an investment broker and later, it became apparent that the investment broker had invested $1.5m in a bunch of “collateralized debt obligations” that were adversely affected the American Global Financial Crisis, ie. the toxic debts that are spoken of in hushed tones.

The Minister found out and wrote to FMIT asking what had happened with

Frank Di Masi, plaintiff no.2

these investments. In May 2008, the Minister appointed an auditor to investigate FMIT’s affairs and that auditor found that FMIT’s viability was at risk. Ultimately, in August 2008, the Minister made the decision that the Corporation take over.

The Minister’s decision was met by local outrage. There were protests and placards and so the Minister wrote a letter justifying the decision. The letter was sent to FMIT’s former customers and it did not hold back.

Among other things, the letter said this:

“My decision was based in part on the fact that the FMIT Board members broke the law by investing $2.2 million of Victorian government money without Treasury approval… The Government loaned this money to FMIT to invest in upgrading local irrigation infrastructure, for the lasting benefit of its members. Instead, the FMIT Board invested the money in the United States sub-prime mortgage market, where it lost $2m of its value.

This was a serious breach of trust with local irrigators… It also reflected an entrenched disregard for the governance and financial processes required of all water authorities to ensure that public money – your money – is being used appropriately.”

Tim Holding MP

The Corporation then published the letter on its website under the heading “Integration of FMIT”.The plaintiffs each sued the Corporation for this republication of the letter on the website.

There were other allegations made in the letter and although none of the plaintiffs were named, they ultimately each relied on 3 imputations:

The plaintiff broke the law by investing $2.2 million of Victorian Government money without Treasury approval;
The plaintiff acted irresponsibly and outside the law by investing money loaned from the Victorian Government in the United States sub-prime mortgage market;
The plaintiff approved secret last minute adjustments to senior management contracts in the event of the First Mildura Irrigation Trust being taken over.

The Corporation ran defences of fair report of a public document, qualified privilege under s.30 of the Defamation Act and also qualified privilege at common law. It alleged it had a duty to publish the Minister’s explanation. The plaintiffs then claimed the Corporation was actuated by malice.

A whole range of issues were fought up to and at the trial. After the lengthy trial, and several interlocutory decisions along the way, the jury’s verdicts for the 4 cases were essentially that:

– the article had been downloaded and read by 4 people in Victoria, of which 2 understood that the article referred to each of the plaintiffs; and

– the Corporation was actuated by malice in publishing the letter.

Then the 3 main issues remaining for Justice Kaye were:

the defence of publication of a fair copy of a public document;
the statutory defence of qualified privilege; and
the issue of damages.

The first question of these was whether the Minister’s letter was a public document within s.28 of the Act. That came down to whether the letter was “issued” by the Government and His Honour concluded it was not. It was not a formal document, but was simply an explanation of a decision [93].It was not for the public, but simply for a number of FMIT customers. So no defence for publication of a fair copy of a public document. It was not a public document.

On to qualified privilege, firstly under s.30 of the Act. Did the recipients have an interest in receiving the letter? Was the letter published in the course of giving that information, and was the Corporation’s conduct reasonable?

The defendant

His Honour noted that the concept of “interest” under the Act is significantly wider than the common law qualified privilege defence [145], and held that the recipients, including a sister of one of the plaintiffs, had such an interest on that basis. Further, the publication was published in the course of giving the information, and so the real question was whether the Corporation’s conduct was reasonable.

His Honour concluded that he could not infer anything from the jury’s answers and held that he could consider the subjective intent of the Corporation [160]. In all, His Honour concluded that the Corporation’s conduct wasnot reasonable [182]-[193].

Crucially, by August 2009, the Corporation was aware that the $1.5 m placed with the investment broker had been recovered, so the allegation that $2m had been lost, was false. His Honour also stated that he was not confined to just looking at the time the article was uploaded by the Corporation, when considering the question of reasonableness. The article had been left on the website for at least 18 months, well after the Corporation was fully aware of the true circumstances.

So no s.30 qualified privilege defence, and there could be no common law qualified privilege defence because the jury answered that the Corporation was actuated by malice.

On to damages. There was evidence that only 4 people read the article and none of them thought any less of the plaintiffs. But His Honour held that there was evidence of the “grapevine effect” [216]-[219], and especially in this rural community. There was evidence that nearly everyone in Mildura knew of the allegations in the letter.

The Corporation then claimed that under cross-examination, evidence had been given by some of the plaintiffs that evidenced the truth of some of the allegations, namely that the plaintiffs broke the law, when making the $2.2 m investment.

His Honour then had to deal with whether a defendant could adduce evidence of the truth of the allegations, even if no truth defence was pleaded. It was claimed that this could go to the mitigation of damages. It poses an interesting question for defendants. There had been no Australian case on this to date, and referring to an English authority, His Honour concluded that a defendant could adduce this evidence for that purpose [313]. But it appears that there is a catch. If the defendant does this and loses, it can probably expect to go down for aggravated damages in the process, as the defendant did here.

Anyway, there was evidence that each of the 4 plaintiffs held a high reputation in the Mildura community before the publication and His Honour concluded that any shortcomings in their actions while on the FMIT Board were far less than the seriousness of the imputations leveled against them. They won aggravated damages (although how much was not specified), largely because of the Corporation’s abandonment of the truth defence at the start of the trial and also the Corporation’s conduct of the defence (ie. the cross-examination and statements made by the Corporation’s Counsel in opening about proving the truth of the allegations).

So the plaintiffs suffered substantial damage. Mr Belbin, Mr Di Masi and Mr Marciano each won $70,000, while Mrs Prevedello, who was not even on the FMIT Board at the time of the conduct complained of, won $85,000.

So for 2012, the plaintiffs’ winning continued. A happy new year in Mildura.

Posted in Damages, fair and accurate report, Qualified privilege, Reciprocal duty-interest, Trial, Truth | Tagged grapevine effect, politician | 1 Comment

Holmes a Court wins in High Court: Papaconstuntinos v Holmes a Court [2012] HCA 53

Posted on December 12, 2012 by Justin Castelan

Given that AFL Football and cricket have this year graced us with fantastic

The plaintiff/ Appellant

defamation cases about talk shows, lurid affairs and sordid match-fixing claims, it seems only natural that Rugby League would eventually get a Guernsey as well.

And so it was. The High Court gave leave to appeal (still not sure why) and heard the appeal relating to the financially struggling South Sydney Rabbitohs and the feuding enemies who jousted for positions on the Club’s Board in March 2006. In the one corner was the plaintiff, Tony Papaconstuntinos, or Mr Papa for short, who was a director of the Club and also employed by the Construction, Forestry, Mining and Energy Union (CFMEU).

In the other corner was the defendant, Peter Holmes a Court, a rich businessman and Russell Crowe, who hasn’t yet hosted the Academy Awards, but has managed to win one or two along the way. They had a $3 million proposal to help the Club out of its financial woes and in exchange would take a controlling interest in the Board’s management. Mr Papa was firmly opposed to it.

An Extraordinary General Meeting was set down for 19 March 2006 to vote on the proposal. Two days before that, Holmes a Court wrote a letter to the State Secretary of the CFMEU. Holmes a Court complained to him that:

Mr Papa, as an official of the CFMEU, had contacted members of the club “to repeat misleading information about the members of the Club.
If there was a change of management in the Club, then there would be disclosure of certain dealings between the Club and Mr Papa’s son, Jamie, who was employed as an assistant coach and paid $60,000, when the usual rate for someone in such a position was $4,000;
The question was then raised as to whether Jamie’s payment was a premium “as a reward for other activities, or a method of channeling funds to the CFMEU”; and
Holmes a Court had also been told that the payments were to be met by sponsors of the club and they were construction companies.

The matter originally came before Her Honour Justice McCallum for trial in the NSW Supreme Court in 2009. Her Honour found that the sponsors might have had a motive for keeping the CFMEU happy and that the facts were “inherently suspicious”. In any event, Her Honour concluded that the letter conveyed the following 3 imputations:

Mr Papa, a board member of the club, repeated information he knew to be misleading about Mr Holmes a Court’s proposal to take a controlling interest in the club;
Mr Papa was reasonably suspected of corruptly arranging for funds meant for the club to be channeled to himself; and
Mr Papa was reasonably suspected by Mr Holmes a Court of corruptly channeling overpayments by the club to the CFMEU.

Holmes a Court only pleaded common law qualified privilege, on the basis that

Holmes a Court and Russell Crowe

he had an interest in publishing the letter to the CFMEU and they had a corresponding interest in receiving the information. The trial judge concluded that there was no “pressing need” for Holmes a Court to write the letter and volunteer defamatory information about events surrounding Mr Papa’s son and his employment several years earlier. Mr Papa was awarded $25,000 in damages.

Holmes a Court appealed to the NSW Court of Appeal, who concluded that the letter was protected by qualified privilege and set aside the verdict. Mr Papa appealed to the High Court.

The question was really this. Can a defendant claim qualified privilege, when there is no “pressing need” to publish the matter complained of and it concerns the protection of that person’s self-interest? The only interest that Holmes a Court could point to was a private interest, ie. He wanted to get his proposal up. Also, the information in the letter was not requested by the CFMEU.

Counsel for Mr Papa argued that the reciprocity of interest qualified privilege defence should only be available if the publisher satisfied a test of “reasonable necessity” to publish, and that should be wound in with there having to be a “pressing need” to publish.

But the High Court said no. There is no such principle in the law and the qualified privilege defence therefore stood. Four judges concluded that just because the letter was voluntary did not mean that it necessarily could not be covered by qualified privilege. It was so covered here.

In dissent, Justice Heydon spoke of “this lamentable litigation” and gave a concise summary of defamation law as we know it [53]:

“Modern defamation statutes typically include a provision capping damages for non-economic loss, a provision making malice irrelevant to damages and a provision preventing the grant of exemplary and punitive damages. They also provide for many defences. Cui bono? Whom does the modern law of defamation assist? Not people in the position of the appellant in this appeal – the plaintiff at trial. It is rarely commercially wise for a poor plaintiff to sue a rich defendant over defamatory material published to a small number of people only. That is so even if, as here, the defamatory material alleges deceit and corruption, the defendant admits that the defamatory material is untrue, and the defendant makes no attempt to establish that the publication was reasonable. The appellant has lost this appeal and lost the case. But even if he had won the case, it is highly questionable whether he would have been financially better off than if he had never sued at all.”

Certainly a warning to potential plaintiffs and a sobering thought to all who practice in the area. Nevertheless, at the end of the day, it was still the High Court who granted special leave to address this qualified privilege point in the first place, so His Honour can probably expect that there will be more to come.

Posted in Qualified privilege, Reciprocal duty-interest | Tagged Appeal court, sport | Leave a comment