On 23 December 2015, Mr Justice Blue awarded general damages of Aus$100,000 for libel against Google Inc to Dr Janice Duffy ([2015] SASC 206). This decision followed the same Judge’s ruling in October 2015 that Google was liable for the defamatory content of hyperlinks and snippets referring to the plaintiff (see the Inforrm post on this decision).
Background
On 27 October 2015 Mr Justice Blue, held ([2015] SASC 170) Google Inc had, between January and December 2010, published of paragraphs containing extracts from and hyperlinks to two webpages on the ripoffreport.com website and by those two ripoffreport.com webpages themselves, and between January and October 2010 of a paragraph containing extracts from a webpage on the 123people.com website.
These extracts were found to contain imputations defamatory of Dr Duffy. The defences of innocent dissemination, qualified privilege, justification and contextual truth failed.
Judgment
The Judge rejected Dr Duffy’s argument that the defamatory publications damaged her earning capacity and caused mental harm. Any such loss or harm was a result of publication in or after 2013 and not the result of the publication in 2010 of the material found to be defamatory.
Dr Duffy contended that the fact that she had devoted herself to the litigation of several years had caused a diminution in her earning capacity. The Judge also rejected this argument holding that the devotion to the litigation was a free choice and was not cause by the defamatory publications.
The Judge rejected the argument that the failure of Google to apologies and its persistence in a defence of justification did not give rise to aggravated damages because this conduct was not in bad faith, improper or unjustifiable ([85] and [89]).
In relation to general damages the judge noted a number of general points, in particular:
- The threefold purpose of defamation damages, compensation for hurt feelings and damage to reputation and to vindicate reputation.
- Harm continues up to the conclusion of the litigation and includes hurt and distress suffered at trial as a result of the litigation process.
- The defendant must take the plaintiff as it finds him or her.
After considering the gravity of the defamation, the extent and duration of publication and Dr Duffy’s particular vulnerabilities, the Judge concluded:
“The hurt and distress caused by the defamatory publications is a large factor in the overall damages to be awarded, but there must also be a component for reparation for the harm done to Dr Duffy’s reputation. In addition, the overall award must be sufficient to signal to the public vindication of her reputation“. [131]
In the circumstances, he assessed damages in the sum of Aus$100,000 (£48,000). The Judge also ordered Google to pay interest of Aus$15,000.
Counsel for Google asked payment of those amounts be stayed until January, pending argument on court costs and a possible appeal.
The Judge stayed the order for payment pending a possible appeal but ordered Google pay the full amount into the court registry by 11 January 2016.
Comment
This is an important case which has been pursued by Dr Duffy, who represented herself at the trial, with great tenacity over a period of nearly 5 years. She has published a case blog.
This judgment provides a short and helpful survey of the principles governing the assessment of libel damages in online publication cases. Although Dr Duffy was unable to demonstrate economic loss she recovered a substantial award of general damages. She is reported as saying the damages were not, and had never been, her goal.
It seems likely that Google will appeal on both liability and quantum. The case will provide a useful opportunity for the appellate courts in Australia to analyse the principles governing publication on the internet.
Reblogged this on cstuartblogdotcom.