Australia: Rebel Wilson’s $4.56m win amid Bauer bungle – Stuart Gibson

This award is a game-changer, and a new record for defamation payouts in Australia. Undoubtedly, every media outlet who deals in celebrity gossip will be reviewing their publishing protocols in light of the Wilson decision.

But there is another, largely unexplored, angle to this story. To put it simply, did Bauer bungle its own case? In my view, they did.

The majority of the $4.56m award was for special loss’ — the “lost opportunity” for Wilson to secure decent acting roles for the 18 month period following publication of the defamatory articles. Damage awards for special loss are notorious for being at the lower end of the scale and the quantum in this case — $3.9m — is what really sets this decision apart.

But how did Wilson prove this “lost opportunity”? She argued that she would have been offered lead roles in unidentified movies in the 18 month period. This argument was circumstantial at best, a fact acknowledged by the presiding judge himself.

In support of her claims, Ms Wilson called the evidence of a little known producer Peter Principato, who gave evidence by way of a poor video link. His evidence was unconvincing. Amazingly, Bauer failed to call any directors or producers at all in relation to why Mr Principato’s evidence should be rejected.

And the evidence was ripe for the picking. Hollywood is a fickle industry. Success in one movie in no way guarantees continuing success for the next one, as the careers of

John Travolta, Mel Gibson and many comedic actors like Eddie Murphy, Mike Myers and Jim Carey will attest. Actors burst onto the scene, disappear for a few years and then regain their popularity — a well known phenomenon.

But Bauer failed to call even one Hollywood executive who could have given this evidence. They could have called 15 witnesses if they had wanted to, but chose not to. This was inexplicable. In the judgment, his Honour was equally puzzled. Bauer could have argued, for example, that there were no films during that period suited to Wilson’s style. But they failed to do so. To say the short hiatus in Wilson’s upward trajectory was attributable to something published in a few Australian glossies was eminently challengeable.

One of the key reasons why the Court found for Ms Wilson was the “grapevine effect”; namely the spread of the defamatory imputations beyond Australia to other jurisdictions, California (and Hollywood) in particular.

Ms Wilson called two witnesses who gave evidence of the grapevine effect in Hollywood. Bauer called none. In my experience in litigating against glossy magazines over several decades, it is very unlikely Hollywood would give a toss about what a little known Australian glossy would publish about Australian celebrities, particularly where the defamatory imputation was that an actor has told some porky pies.

This is because circulations of Australian magazines are low compared to those in America.

Second, most readers simply don’t believe what glossies publish.

Third, because to lie about one’s age and background — the impugned statements in this case — has always been “de rigeur” in Hollywood. Yet Bauer failed to call one expert who could have given this evidence.

At trial Bauer also failed to call any experts to provide other plausible explanations as to why Ms Wilson lost roles during the 18 month period. For instance would Amy Schumer, who possesses a strong female comedic voice and was cheaper, have obtained the roles that Ms Wilson wanted and for half the fee? There could have been half a dozen reasons — timing, lack of suitable roles, preferred talent, cheaper talent and so on. Yet Bauer failed to call any evidence whatsoever.

Nor did Bauer go into any micro analysis of the $4m payout. It failed to call any experts to properly identify Wilson’s expenses (such as lawyers, accountants, agent fees travel fees) and the tax treatment of her alleged earnings. This expert evidence should have been called.

None of this detracts from the fact that this is a landmark decision. However, the fact remains that the Court could have easily come down the other way if Bauer had used the ammunition available to it.

Stuart Gibson is a partner at law firm Mills Oakley. He specialises in media and defamation

This post originally appeared in the Australian Business Review and is reproduced with permission and thanks.