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Australia, Gayle v Fairfax, a not so surprising verdict – Graham Hryce

When world views collide … As the fallout continues from the jury verdict in Chris Gayle’s defamation trial against Fairfax, media lawyer Graham Hryce suggests why it’s not so surprising that the media company went down.

A New South Wales Supreme Court jury handed down its verdict on Monday in the Chris Gayle defamation action against Fairfax.

imageGayle (pic) a celebrity international cricketer, sued Fairfax over a number of articles which alleged that he had exposed himself to a female masseuse in a change room at Drummoyne Oval in 2015.

Fairfax raised defences of truth (relatively unusual for a media defendant) and qualified privilege. Fairfax called the masseuse, Leanne Russell, who testified that Gayle had partially exposed himself to her.

Fairfax also called Chloe Saltau, the journalist who wrote and was responsible for most of the articles sued upon, and both witnesses gave what appeared to be credible evidence.

Gayle denied that the masseuse was ever in the change room. He also called evidence from a teammate, Dwayne Smith, who testified that the masseuse had come into the change room, but that Gayle did not expose himself to her.

The jury of four (three women and a man) took less than two hours to find in favour of Gayle.

The jury rejected both defences, and to add insult to injury, found that Fairfax was actuated by malice in publishing the defamatory articles.

It is a disastrous result for Fairfax, who face having to pay a six figure damages award as well as Gayle’s and their own legal costs – which alone could be in the order of $2 million.

The verdict surprised most observers of the trial. Is the verdict so surprising though?

Given that juries do not give reasons, one can only speculate about the result in general terms.

Leaving aside legal issues (and Fairfax has already expressed dissatisfaction with the trial process) the explanation perhaps lies in the underlying views of the average juror.

Anyone who has ever been involved in a defamation action knows that the average juror is more likely than not to hold a number of views.

Dislike of the media is one. The average juror has read enough beat-ups and seen enough foot-in-the door interviews to know that media organisations often unfairly defame people.

Jurors are also acutely aware of the huge disparity of wealth and power between media organisations and individual plaintiffs.

It follows that most jurors are pro-plaintiff.

In fact, for a media defendant to win a defamation action it is necessary to persuade a jury that the plaintiff is a completely undeserving individual.

Fairfax clearly failed to do that in the Gayle case, in part perhaps because Gayle was only accused of exposure – not something more serious.

Most jurors also have a fondness for sports stars, and sporting heroes have had a great deal of success in libel actions – e.g. Clive Lloyd and the West Indian cricket team, Andrew Ettingshausen, Ron Clarke etc.

The list is endless.

The Gayle case may also have been about a clash of opposing views as to what constitutes acceptable behavior between men and women.

The Fairfax articles were written from a “politically correct” perspective – that is, from a viewpoint which holds that all forms of crude male sexual behavior towards women (including attempts at humour) are utterly unacceptable, and deserving of severe punishment.

Leanne Russell held this view, as did the female Fairfax journalist who published Russell’s account of what she alleged occurred during her encounter with Gayle.

But there is an opposing view.

The traditional male-oriented view that sexual banter, extending perhaps even to exposure and beyond, is nothing more than a joke and, therefore, constitutes perfectly acceptable behavior.

This is Gayle’s view, as he made perfectly clear after his infamous “Don’t blush baby” television interview with journalist Mel McLaughlin.

Australia should “just lighten up” said Gayle.

In fact, it was the McLaughlin interview which prompted Leanne Russell to approach Fairfax with her story about Gayle.

imageThese two opposing views as to what constitutes acceptable behavior permeate our culture.

When Donald Trump and Hillary Clinton clashed during the recent presidential election over Trump’s comments about being able to “grab them [women] by the pussy” – it was over these two views.

Clinton argued, from the perspective of political correctness, that Trump’s comments were so unacceptable that they should disqualify him from holding political office.

Trump responded by saying that his comments were a joke and mere “locker room banter”.

The fact that Trump won the election shows that the traditional male view as to what constitutes acceptable behavior is alive and well, and held by a substantial proportion of the populace – those that Hillary Clinton termed “deplorables”.

And many “deplorables” are women. After all, “Women for Trump” organisations were crucial to Trump’s electoral success in the key rustbelt states.

The Gayle jury may well have subscribed to the traditional male view of what constitutes acceptable behavior.

In any event, the inevitable Fairfax appeal will be watched with considerable interest.

Judges also have views, and Fairfax may get a better hearing in the Court of Appeal – although given the jury’s findings (both explicit and implicit) any appeal faces substantial difficulties.

*Graham Hryce is a media lawyer and commentator.

This post was originally published in the Gazette of Law and Journalism, Australia’s leading online media law publication.

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