Top 10 Defamation Cases of 2018: a selection – Suneet Sharma

Inforrm reported on a large number of defamation cases from around the world in 2018.  Following the widely read post on 2017 cases, this is my selection of the most legally and factually interesting cases from Australia, New Zealand, Canada, United States and England from the past year.   

1. Wagner v. Harbour Radio [2018] QSC 201, (Australia)

The Wagner case involved allegations that, as owners of the damn itself, the Wagner’s were responsible for those killed when its wall collapsed upon them during floods in 2011. The maker of the broadcast, Alan Jones of 2GB, made 76 defamatory imputations against the Wagner’s over the course of 27 radio broadcasts between October 2014 to August 2015.

The Court considered the defamatory statements to be of the highest seriousness, implicating the four Wagner’s in multiple deaths. An award of $3.7m in damages was made in total, with each of the claimants receiving a substantial award of aggravated damages due to Jones “vicious and spiteful” conduct.

Following the reduction in Rebel Wilson’s damages in her defamation case this case re-affirms the principle that, in Australian defamation cases, the Court will permit substantial awards of aggravated damages where the is reprehensible conduct by the claimant. In doing so awards for similarly serious imputations easily surpass the statutory cap of $398,500 on general damages.

The case drew significant coverage from local news outlets the Australian and Brisbane Times. Internationally The Guardian and Daily Mail had coverage. On INFORRM we had a case comment by Stuart Gibson.

2. Moroney v. Zegers [2018] VSC 448, (Australia).

A case before the Supreme Court of Victoria, $887,027.66 in damages were awarded against Mr Zegers for emailed comments he made regarding Mr Moroney and the Sporting Shooters Association (the “Association”) Board following his loss of the 2014 Election.

The emails were sent from July 2014 to January 2018 from various anonymous email accounts and an affiliate website was established. Though Mr Zegers continuously denied being the author of the emails and owner of the website the court ordered a diagnostic of his computer. The result was 1,683 pages of material the majority of which incriminated Mr Zegers. Mr Zegers was ordered to pay £887,027 in damages (including interest), as significant proportion of which was due to aggravated damages considering his course of conduct.  Justin Castelan covered the case in an INFORRM post.

3. Bauer Media v Wilson (No2) [2018] VSCA 154, (Australia)

Rebel Wilson’s defamation award of A$4,749,920.60 against Bauer Media was the subject of an appeal to the Supreme Court of Victoria. Bauer argued that the £650,000 award of aggravated damages was excessive due to errors in findings of fact. Significantly, Bauer challenged the award of special damages in the sum of A$3,917,472 to Wilson. The result? An unprecedented reduction in damages and a significant case addressing damages in defamation cases.

The court, partially agreeing with Bauer, reduced Wilson’s award of aggravated damages to £600,000 and ruled that special damage was not made out-  loss of earnings (in respect of lost opportunities e.g. adverse casting decisions) could not be proven on the balance of probabilities. In doing so the court set out useful guidance in approaching quantum issues, in particular, the construction and application of the requirements to prove special damage. The story was covered in a number of places including the Guardian, BBC, Sky, Metro and Reuters.

4. Trkulja v Google LLC [2018] HCA 25 (Australia)

The long running saga of Mr Trkulja’s case against Google for the takedown of allegedly defamatory content published via its search engine from December 2012 to March 2014 continues. In particular, Mr Trkulja claimed the images allegedly implicated him as a criminal (the “Images”). He also included a claim that Google’s autocomplete function, in presenting defamatory search results, was effectively publishing defamatory content (“Web Matter”). On INFORRM Justin Castelan provides a concise summary of the background to the case, including the previous Court of Appeal and Supreme Court of Victoria cases which ruled against Mr Trkulja, finding his case had no reasonable prospect of success.

In this instance Mr Trkulja appealed to the High Court seeking to overturn the Court of Appeal’s findings, as upheld by the Supreme Court. Doing so would overturn the summary dismissal of the case, allowing it to proceed to trial. The three main grounds for dismissal advanced by Google were that:

1. It could not be considered a publisher of the Images or Web Matter, merely an intermediary;
2. That the Images and/or Web Matter at issue were not defamatory of Mr Trkulja; and
3. That Google was entitled to immunity from suit as a matter of public policy.

In its judgment, the court was highly critical of the analysis of the lower courts. In finding for Mr Turklja the court provided the groundwork for a finding against intermediaries such as search engines for the publication of defamatory content of third parties. It held that Google’s intentional participation in communicating the alleged defamatory content supported a finding that it was a publisher. Further, the implication of the defamatory content. Whether such a finding against Google will be made out at trial is much anticipated.  Coverage of the case can be found on ABC with legal analysis from the Unimelb Blog and Clayton Utz.

5. Durie v Gardiner [2018] NZCA 278, (New Zealand)

In this case, the New Zealand Court of Appeal recognised for the first time a “public interest defence” for journalists in defamation actions. The case involved an appeal in a defamation action by former high court judge Edward Durie and lawyer Ms Hall against the Maori Television Service (“Service”) and its news reporter Mr Gardiner. The claim arose from two television broadcasts and website stories published by the Service in August 2015 criticising the claimant’s actions in the course of their involvement with Moari Council (the “Communications”). Specifically, the article alleged that Mr Durie, as a former Trustee of the Council, and Ms Durie had been removed as its legal counsel for conflict of interest and propriety issues.

Maori TV pleaded defences of honest opinion, qualified privilege and/or public interest in making the Communications. Significantly, the court considered the development of the public interest defence under New Zealand law subsumed that of qualified privilege. The new defence consisted of two criterion:

1. the subject matter of the publication was of public interest; and
2. the communication was responsible. [at p.58]

This new defence is available to all members of the public claiming to publish any material in the public interest, with a particular sub-species applicable to journalist’s reportage. As Maori TV’s communications did not reference independent third party sources in support of its allegations the court determined that the defence was to be applied generally.  The case attracted case comments from Duncan Cotterill, New Zealand’s Law Society, Bell Gully and Chapman Tripp.

6. Haaretz.com v. Goldhar 2018 SCC 28, (Canada)

In 2011 Israeli news organisation Haaretz published an article online alleging that Canadian businessmen Mitchell Goldhar’s management of Maccabi Tel Aviv FC amounted to “penny-pitching” focusing on short term goals. In the subsequent defamation action Mr Goldhar brought Haaretz claimed that the case was out of jurisdiction, having been issued in Ontario rather than Isreal.

The court addressed significant jurisdictional issues where defamatory material was published multi-jurisdictionally, addressing concerns regarding libel tourism in the process. The court agreed with Haaretz 6:3, granting its motion to stay proceedings in Ontario. The judgment itself was divided on the precise reasoning in determining the claim as being out of jurisdiction, a matter which was analysed by Natasha Holcroft-Emmess on INFORRM.  There were a number of other published case comments and analyses including Gilbertson Davis, Kanuka Thuringer and The Court.

7. Khan v Orbis Business Intelligence Limited 20 September 2018, DC Superior Court  (United States)

A case which covered statements made by Christopher Steele, former MI6 officer, in a Fusion GPS dossier regarding three Russian oligarchs and their links to the Trump campaign. The Defendants sought to dismiss the advanced defamation action by claiming the protection afforded by the Anti-SLAPP (strategic lawsuit against public participation) Act.  This prevents lawsuits aiming to silence information which debates political points of view, underpinned by the First Amendment, Freedom of Speech. In the event the Act applies on the facts it will fall to the plaintiff to prove that their claim is likely to succeed. On the facts of the case the Act’s threshold was met on a prima facie basis.

Therefore, the plaintiff’s had to prove that Steele acted with actual malice- with false or reckless disregard for whether the statements he made were true or not. The plaintiff’s failed to meet their burden, submitting no evidence to support their submission. It was accordingly ruled that Steele was protected under the First Amendment, free speech.

The case, was covered by Wiley Rein LLP The Atlantic, BBC and Washington Post.

8. Clifford v. Trump 15 October 2018, 15 October 2018 US District Court, California CD [pdf], (United States)

The ongoing defamation litigation Ms Clifford, better known as Stormy Daniels, is bringing against Trump developed substantively across the year, concerning a tweet made by President Trump against Clifford. The ruling is significant not only from a defamatory perspective but from a US constitutional law perspective regarding presidential liability. The President filed a Special Motion (the “Motion”) to dismiss the case on three grounds:

1. His tweet was a protected opinion,
2. Clifford had not suffered damage due to the tweet; and
3. The political nature of the tweet rendered it the protection of the Anti-SLAPP Act, meaning the President was protected from suit as he had not acted with malice or reckless disregard for the truth.

The Motion was considered timely and was granted on the basis that the tweet constituted a rhetorical statement of political opinion qualifying for first amendment protection.  The full Court docket can be found here. The case received wide news coverage including CNN, NBC, Bloomberg, the ACLU Blog and the Guardian.

9. Economou v de Freitas [2018] EWCA Civ 2591 (England and Wales)

Heard in the Court of Appeal, Alexander Economou’s appeal against David de Frietas concerned seven publications making highly serious allegations of criminality. Mr de Frietas made the allegations following the tragic suicide of his daughter, regarding her prior imminent prosecution for making false allegations of rape against the defendant.

The claimant alledged that the statement’s meaning was that he had prosecuted Ms de Freitas for perverting the course of justice on a false basis, and was guilty of her rape, or there were strong grounds for suspecting that he was. In actuality, charging decisions were made by the CPS. The Defendant relied upon the public interest defence under s.4 Defamation Act 2013. It was these two issues which were the focus of the trial. Primarily, the status of contributors and their reliance upon the conduct of the media organisation they contributed to in advancing a public interest defence was dissected.

In dismissing the appeal the Court of Appeal found that the well versed Reynolds criteria was applicable here however, a holistic approach which considered all the facts of the case was required. In relation to mere contributors to publications it was held that their standard of conduct need not reach that of professional journalists to qualify for the absolute public interest defence. Further guidance, will no doubt clarify this fact-sensitive issue, building upon this significant precedent to give certainty to amateur journalists, bloggers and freelancers.

We had a case comment on INFORRM from Dominic Gardner. Comments were also made by Brett Wilson, Lewis Silkin, One Brick Court and 5RB.

10. Doyle v Smith [2018] EWHC 2935 (QB) (England and Wales)

In Doyle the Court considered the construction of s.4 Defamation Act 2013 where an amateur blogger and parish councillor sought to rely upon it. Mr Smith, a resident of Caddington published four articles relating to a planning application made to the local council by Mr Smith. The second and third articles were the focus of this action, which the claimant alleged conveyed that he had committed £10m fraud and that there were reasonable grounds to suspect him of malicious communications and blackmail.

The defendant, abandoning his truth defence in light of insufficient pleadings, relied upon that of public interest in relation to the second article. However, it was considered that the defendant believed the statements he had made to be false, rendering reliance the defence unavailable. The third article failed to meet the threshold for serious harm.   The Brett Wilson Media Blog has coverage of the case as does Matrix Chambers.