casacirJeffrey and Curnow were defamed by statements made by Virginia Giles on a website in 2011. The plaintiffs were directors of a company, Casacir Pty Ltd, which operates a quarry in the south of Victoria. The defendant’s company owned the neighbouring property and the defendant planned to retire there. So when the plaintiff applied for a permit to use the land as a quarry, the defendant objected and there was a hearing at VCAT about that. The defendant lost and the quarry was allowed.

After the VCAT hearings, the defendant created a website: That website contained a number of statements which the plaintiffs claimed were defamatory of them, including statements that were said to carry the following meanings:

  • Jeffrey provided inaccurate, fictional and/or deceptive information at community meetings about the quarry;
  • Jeffrey deliberately gave false evidence under oath at VCAT; and
  • Curnow also effectively gave false evidence before VCAT.

The plaintiffs sued in defamation. In 2013, a trial was held in the Victorian Supreme Court before His Honour Justice Pagone and the plaintiffs virtually won everything. The trial judge accepted that the statements conveyed the meanings that Jeffrey and Curnow had deliberately given false evidence under oath before VCAT, and that Jeffrey would apply the orders of the Tribunal only as it pleased him to interpret them. The trial judge then found that the plaintiffs were entitled to consolation, reparation and vindication for the injury caused to their good reputations by the defendant’s defamatory conduct.

The plaintiffs’ evidence at trial were about the impact of the defamatory words within the quarry and road stabilization industries, and the grapevine effect of those words.

But the trial judge held that a lot of the evidence did not distinguish between the impact on the plaintiffs of the defamatory words and the impact caused by other conduct of the defendant, including other non-defamatory statements on the website. Thus the conclusion was that the defamatory words were only one of the causes of the injury to the plaintiffs. Ultimately, the trial judge awarded $12,000 damages to Jeffrey and $8,000 to Curnow. The plaintiffs appealed, claiming that the amounts were manifestly inadequate.

The Victoria Court of Appeal agreed ([2015] VSCA 70). The damages were too low. It was concluded that the trial judge’s awards were unreasonable or plainly unjust.

While there was no real evidence that people who had visited the website had actually seen the defamatory words, the Court of Appeal still concluded that the awards were “derisory” and so low as to be manifestly inadequate. The Judges referred to other defamation cases concerning statements made on the internet that attracted damages of $225,000 and $200,000, and stated at [36]:

The view has been expressed that the `choice of the Internet as the medium for the publication of defamatory material may be an important factor in determining the extent of compensatory damages, not only because of `its interactive nature, its potential for being taken at face value, and its absolute and immediate worldwide ubiquity and accessibility., but also because of the possibility of retrieval by anyone who is computer literate:

In the past, a defamatory article in a newspaper might have been quickly forgotten and accessible only to an intrepid researcher prepared to spend hours in a dusty archive or pouring over microfiche film. Today, the same article stored in an online archive may be able to be retrieved in a matter of seconds by anyone with a computer or other Internet-enabled device, an internet connection and a passing familiarity with the formulation of search engine inquiries.”

The Court of Appeal also held that the trial judge erred because he implicitly proceeded on the basis that damages could only be awarded if the harm “has been solely caused by the defamatory statements”. That was a mistake. The statements need only be a cause, not the sole cause. Once that is established, then the plaintiffs were entitled to general damages that bore an appropriate and rational relationship to the harm that was sustained.

In all, the Court of Appeal held that while the plaintiffs were not entitled to aggravated damages, Jeffrey was entitled to $75,000 damages and Curnow was entitled to $65,000: a significant improvement for them.

So the Victorian Court of Appeal has latched on to the importance of internet publications. No longer will the internet be treated as less important or less harmful than publications in newspapers or on television.  The Court is moving with the times. Unfortunately for Australian law, when it comes to the internet, we are still miles behind Europe and America .…

This post originally appeared on the Defamation Watch blog and is reproduced with permission and thanks