Facebook attack on Mayor of Narrabri … $100,000 damages … Whether posts had been published … Extent of readership … Defences of common law and statutory qualified privilege rejected … No malice, just “stupidity, bias and carelessness” … Injunction … “Liking” is not the same as publishing a post … Stephen Murray reports.

In the case of Bolton v Stoltenberg [2018] NSWSC 1518 a former mayor of Narrabri Shire Council has been awarded $100,000 in damages by the NSW Supreme Court after a “ratepayer activist” was found to have defamed him on a Facebook page in a “hectoring … bullying … high handed” tone.

Stephen Stoltenberg was found to have defamed Conrad Bolton (pic) in a series of posts on council matters on a public Facebook page, titled “Narri Leaks”, in 2015 and 2016. Justice Anthony Payne awarded Bolton $80,000 in respect of these posts.

Aggravated damages of $20,000 were awarded after Stoltenberg subsequently compared Bolton’s behaviour to that of Don Burke, Craig McLachlan and Harvey Weinstein when those figures were in the news over allegations of sexual misconduct, bullying and intimidation.

Stoltenberg did not give evidence, the judge inferred that even if he did it would not have assisted his case.

Ann Loder, an elected Narrabri councillor since 2016 and a member of the local ratepayers association, was ordered to pay Bolton $10,000 after she was found to have defamed him with a comment endorsing one of Stoltenberg’s defamatory posts.

The court heard that Stoltenberg, a former town clerk, fell out with Bolton after the council in 2013 appointed a woman as its general manager. Stoltenberg believed the council’s state of affairs (a “shitfight”) needed a “bloke” to fix it up.

In June 2015, Stoltenberg created the “Narri Leaks” page on Facebook, which was operated by him and his partner.

Bolton commenced proceedings in respect of six items posted on the page in 2015 and 2016, five of which were by Stoltenberg.

The essential subject matters of the imputations arising from the posts were summarised by Payne:

  • deliberate breaches by Bolton of the Local Government Act;
  • deliberate corruption by Bolton of the selection process for the General Manager of the Council;
  • deliberate lies, coercion and intimidation of employees, contractors, residents and elected councillors by Bolton to suppress the views of others on Council matters;
  • Bolton’s corrupt, dishonest and intimidatory actions as Mayor of Narrabri Shire Council, warranting a full ICAC inquiry;
  • deliberate engagement in corrupt conduct by providing the Independent Regulatory and Pricing Tribunal (“IPART”) with information Bolton knew to be false;
  • an allegation that Bolton acquired millions of dollars through dishonest means.

After initially relying on defences of truth, honest opinion and fair report, Stoltenberg argued that the imputations were not made out as they had been pitched too high, and that Bolton had not proved that any of the matters complained of were “published”, in as far as Bolton had not proven that any one person had downloaded and read any of the posts.

Payne found that defamatory imputations had been made out in respect of each of the posts, with Stoltenberg responsible for five of the six. The sixth post, relating to Bolton’s wealth and how he acquired it, was a comment posted by a reader and had been removed on Stoltenberg’s instructions. Stoltenberg pleaded innocent dissemination with respect to this post, a defence accepted by Payne.

Payne rejected Stoltenberg’s arguments regarding publication, pointing to evidence during the trial establishing the page’s wide readership.

Stoltenberg sought to argue a defence of common law qualified privilege, claiming that the Facebook page was dedicated to dealing with issues of interest to persons within the Narrabri Shire. Payne rejected the defence, saying the facts established that Narri Leaks was downloaded and read by a much wider audience than the residents of Narrabri interested in the finances of the council.

Payne also rejected the defence of statutory qualified privilege, saying that Stoltenberg had failed to establish that he had an honest belief in the truth of the imputations. He also said that the failure to contact Bolton was unreasonable. He said that the language used in the posts was “excessive” and the publication itself “lacked reasonableness”.

Payne rejected Bolton’s contention that the posts were motivated by malice. He said the posts could be characterised as involving “stupidity, bias and carelessness”, but he was not persuaded that malice was the dominant purpose or motive.

Payne granted a limited injunction against Stoltenberg, saying that he was persuaded that Stoltenberg’s posts about the proceedings and his attitude to Bolton in the posts warranting aggravated damages indicated that unless restrained, he would repeat the defamatory claims.

Loder was found to have defamed Bolton with a comment she added to one of Stoltenberg’s posts, telling readers:

“Anyone else agree about getting ICAC and The Minister for local government involved need to like this post.”

Payne found the comment to be a specific endorsement of one of Stoltenberg’s defamatory posts and was an act of authorisation which attracted liability.

However, Payne found that liking posts was not the same as disseminating the posts, after noting that Loder had “liked” 64 posts on the “Narri Leaks” page.

Plaintiff: Matthew Richardson and Michelle Rabsch, instructed by Bell & Johnson Solicitors
First Defendant: Sue Chrysanthou and Barry Dean, instructed by Kalantzis Lawyers
Second Defendant: Richard Potter with L Angelman, instructed by Peter Breen & Associates
Reporter: Stephen Murray

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