Defamation

 

Key points

  • Fixed-fee legal costs to send a concerns notice.  Call me to discuss. Our fixed fee to meet for 1 hour and draft/send a concerns notice is $999 (incl GST).
  • Local to WA. Check whether other defamation lawyers who advertise on Google are in WA or actually in the Eastern States.
  • I handle multiple defamation cases, day-in-day-out. This day-to-day experience means my fees are low, because my team and I are efficient.

Defamation caseload. At any given time my caseload includes: 

  • Multiple defamation cases in Court. 
  • Advising clients at a preliminary stage after they have been defamed. 
  • Negotiating settlements for clients, to see what the other side will offer before we commence a case.

Not many lawyers do defamation work: A WA Supreme Court Judge stated in a 2014 judgment that there is a local deficiency in terms of readily available defamation expertise in the West Australian legal profession:  Sims v Jooste [2014] WASC 373 (S) at [13].

Read more by following these links:

Concerns notices in Western Australia

Online reviews

Identification of the plaintiff

Publication & Republication

Facebook defamation

How do Courts decide your defamation damages?

Defamation in the workplace

Offers to make amends

Are you a victim of 'revenge porn'?

 

What is a 'concerns notice'?

 

Key points

  • The first step when you are defamed.
  • Seeks an offer of monetary compensation (incl for legal costs incurred) from the other party.
  • Demands they 'cease and desist'.
  • Puts them on notice you might sue them if their offer isn't satisfactory.

The first step in a defamation proceeding is for the victim of defamation to issue what is known as a concerns notice.

   The issuing of a concerns notice provides an avenue for the parties to resolve the matter without resorting to formal legal proceedings.

   A concerns notice is a formal document which outlines exactly what defamatory statements are alleged to have been made, when the statements were made, who they were published to, what defamatory imputations can be drawn from the publication, and what amends are requested.

   The purpose of a concerns notice is to set in motion the offer to make amends set out in Part 3 of the Defamation Act 2005 (WA).

For a notice to be a concerns notice:

  1. It must be in writing (Defamation Act s 14(2)(a)); and
  2. It must inform the publisher of the defamatory imputations that the aggrieved person considers are or may be carried about the aggrieved person by the matter in question (Defamation Act s 14(2)(b)).

    When a person receives a concerns notice they may request particulars of the defamatory imputations if they either haven’t been provided or haven’t been provided adequately (Defamation Act s 14(4) & (5)).

   Once a person has been issued with a concerns notice then the publisher has 28 days to make an offer to make amends (Defamation Act s 14(1)(a)).

   In some cases, it may be that after the expiry of a reasonable period of time to respond, the person in receipt of the concerns notice can be taken to have been aware of the existence of the alleged publications, and the concerns notice could even function as evidence to that effect (Douglas v McLernon (No 4) [2016] WASC 320, [262]).

   If the person could put a stop to ongoing publication (by another person), then an inference may be drawn in certain circumstances that the person then either acquiesced or participated in the publication from that point on. 

For an example of a concerns notice in the news, see Lawyers warn Merlino over lobster comments.

 

Online reviews

 

Businesses and ordinary people need to be increasingly aware of the affect internet publications can have on online reputations.

Google product reviews and a plethora of independent review sites such as Zomato, yelp, TripAdvisor and Product Review have made it increasingly easy to damage somebody’s personal or business reputation online.

Smartphones have made it easier to instantly post an online review, often, without thinking of the consequences.

In general, the Defamation Act 2005 (WA) (see section 9 for more details) prevents corporations with more than 10 employees (full-time equivalent) from commencing proceedings for defamation.

However, it is still possible to defame:

  • an employee or the owner of the business with more than 10 employees who may wish to commence proceedings personally; or
  • corporations with fewer than 10 employees.

There may also be other legal avenues for corporations to pursue, such as the law relating to misleading and deceptive conduct.

In June 2017, the Supreme Court of NSW ordered 2 defendants to pay $480,000 in damages to the plaintiff for publications on a website, on Facebook, on Pinterest and a YouTube video which were each defamatory and alleged that the plaintiff was, amongst other things, criminally negligent and unethical.  In that case, the Plaintiff was a surgeon who had performed an operation on the second defendant (Al Muderis v Duncan (No 3) [2017] NSWSC 726).

Defences

However, there can be successful defences.

There can be a defence if the statement was a fair comment or honest opinion, for example.

Under the common law the defence of ‘fair comment’ is available if the defamatory statement is based on a factual matter which is substantially true.

The Defamation Act 2005 s 31 takes the common law defence a step further. 

The defence of honest opinion broadens the requirement that the factual basis be ‘substantially true’ to a requirement that it be based on ‘proper material’. 

The defence is available if (Defamation Act 2005 s 31(1)):

  • The matter was an expression of opinion rather than a statement of fact,
  • The opinion was related to a matter of public interest, and
  • The opinion is based on proper material.

For the defence to be successful, it must be shown that the defamatory material is expressed as an opinion, and not as fact. As Lord Denning stated in Slim v Telegraph Ltd [1968] 2 QB 157 at 170:

“If he was an honest man expressing his genuine opinion on a subject of public interest then no matter that his words conveyed derogatory imputations: no matter that his opinion was wrong or exaggerated or prejudiced; and no matter that it was badly expressed so that other people read all sorts of innuendoes into it; nevertheless, he has a good defence of fair comment. His honesty is the cardinal test. He must honestly express his real view. So long as he does this, he has nothing to fear, even though other people may read more into it.”

The defence will be defeated however, if it is shown that the defendant did not honestly hold the opinion.

Example

In McEloney v Massey [2015] WADC 126,[3] the Court considered whether Facebook posts by the defendant in the “Poms in Perth” Facebook page were defamatory.

The Facebook posts related to an accountant whose services the defendant had sought.

The Facebook posts alleged that the accountant was unprofessional and rude and ripped off and overcharged his clients. The defendant raised the defences of justification and honest opinion.

The Court found that the expectations of the reasonable reader varied depending on the forum in which the material was published. The Court considered that the use of the words “clown” and “shark” in the Facebook posts indicated that it was an expression of an opinion.

The Court considered that because the accountant provided services to the public, the way he conducted himself in providing the services was a matter of public interest.

The matter was based on the personal experiences of the defendant and was based on proper material.

 

Identification of the plaintiff

 

Identification of the person defamed

The Defamation Act 2005 (WA) (‘Defamation Act’) does not specifically require the publication to identify or refer to the plaintiff. However, the imputation will not be likely to cause damage to the plaintiff’s reputation unless it is about the plaintiff (Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 371; Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 at 23) .

Therefore, to justify an award of damages for defamation, the plaintiff must show that the defamatory publication was about them. 

If the plaintiff is identified by name, then this is sufficient (Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 639).  They will just need to show that the defamatory imputations were in fact published by the defendant and that no defence is available. So too, if the plaintiff is identified by their position, e.g. the ‘Minister of such and such’ (Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 at 91).

Likewise, a reference to an ABN or ACN may suffice for a company (AIFME ’97 Pty Ltd v Norley Pty Ltd [1999] NSWCA 259).  

However, where the plaintiff is not named then the plaintiff has to show that they could be identified by the recipients of the publication who have the requisite knowledge of extrinsic facts, at the time of the publication (Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632; Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 at 88 per Hunt J).  

Extrinsic Facts

When the plaintiff isn’t specifically named, the question becomes whether an ordinary, reasonable person, with knowledge of the extrinsic facts, would have reasonably understood the publication to be about the plaintiff (Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 352 per Moffitt P). 

The ordinary person is presumed to be able to make inferences and does not have to approach the question in a legal sense. In addition, if the defamatory statement was published in a sensational newspaper, then greater latitude might be allowed than if it were published in a more serious newspaper (Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 364). 

What constitutes an ‘extrinsic fact’ is best illustrated by an example. In Lewis v Daily Telegraph Ltd [1964] AC 234, at 278 Lord Devlin stated that “to say of a man that he was seen to enter a named house would contain a derogatory implication for anyone who knew that that house was a brothel but not for anyone who did not”. 
If relying on extrinsic facts, then the plaintiff needs to prove the existence of those facts, unless they’re common knowledge (Gumina v Williams (No 1) (1990) 3 WAR 342 at 344).

Take the above example, if the publication had stated that the man was seen to walk into a brothel, then the ordinary natural meaning of the words would themselves be defamatory, and there would be no need to plead and prove the existence of the extrinsic fact. However, if not stated that the house was a brothel, then the plaintiff would have to prove that it was in fact one. 

Lastly, the intention of the publisher is irrelevant. Therefore, even if the defendant was referring to an entirely fictional character, who happened to have the same name as, or because of the extrinsic facts was identified as the plaintiff, the plaintiff still has a cause of action in defamation (Lee v Wilson and Mackinnon (1934) 51 CLR 276).  
 

 

Publication & Republication

 

Who was the defamation published to?

To give rise to a cause of action in defamation the defamatory imputation must have been published to a third party.

The Defamation Act 2005 (WA) does not define ‘publication’.

Under the common law, publication takes place when defamatory material is communicated to some person other than the plaintiff (Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327).  

The third party may consist of a single person (Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364 at 367).  

For instance in Ritson v Burns [2014] NSWSC 272 the proceedings were brought in respect of a single comment made by the defendant to a third person.  The statement in question was made over the phone to a process server and were along the lines of “X is a criminal, I’m not going to give you my address”. This was enough to warrant an award of $7,500 damages. The plaintiff was also awarded costs, and interest on the damages.

It has even been held that communication by a third party of defamatory material about one spouse, to the other, can constitute sufficient publication (Theaker v Richardson [1962] 1 All ER 229).  

How was the defamation published?

If the defamatory imputation was published online, it will be deemed to have been published if the plaintiff can prove information has been conveyed (Dow Jones & Co Inc v Gutnick [2002] HCA 56).  

In Dow Jones & Co Inc v Gutnik the plaintiff showed that the information was conveyed once downloaded from the website it was uploaded to. In Gregg v O’Gara [2008] All ER (D) 111 the fact that one witness testified that he had accessed the material by typing the words ‘Yorkshire Ripper’ into a search engine was sufficient to show the material had been published.  If the person is not named, they may need to provide a witness who believed the published material was about them.

Even if the publication was unintentional, if it occurred because of the publishers’ negligence then this may still constitute publication (Coulthard v South Australia (1995) 63 SASR 531 at 539).  

Anything from spoken words, to printed or audio files, to internet pages, televised material, drawings or photos may constitute communication for the purposes of publication (Defamation Act 2005 s 4). However, the circumstances of the publication, including the mode, and the scope of the publication are relevant when assessing the award of damages.

Therefore, it is essential to obtain legal advice if you are concerned about a publication that has been made about you, or about a publication you are responsible for. 

Has ‘Republication’ occurred? 

In addition, the republication of somebody else’s defamatory statement constitutes a new and actionable defamatory publication, and the person who republishes is as liable as the original publisher (Lewis v Daily Telegraph Ltd [1964] AC 234 at 283, 284).  

It is no defence that the re-publisher is merely repeating a statement.

In certain circumstances the person who made the original publication can also be held to task for any republication of it. This is known as the ‘Rule in Speight v Gosnay’ whereby the original publisher is liable if the republication adheres to the sense and substance of the original publication and the repetition is the natural and probable consequence of the original publication (Speight v Gosnay (1891) 60 LJQB 231; Sims v Wran [1984] 1 NSWLR 317 at 320 per Hunt J).

 

Facebook defamation

 

Have you been defamed on Facebook?

Being defamed on Facebook is horrible.

You should consider issuing a concerns notice and commencing a Court case, in order to protect your reputation.

A previous decision

In 2014 the District Court of Western Australia handed down a decision, finding in favour of a plaintiff in a Facebook defamation case.

In Dabrowski -v- Greeuw [2014] WADC 175 the facts were that:

  1. The parties were a separated husband and wife.

  2. In December 2012 the defendant (the wife) posted on her public Facebook page an entry saying 'separated from Miro Dabrowski after 18 years of suffering domestic violence and abuse. Now fighting the system to keep my children safe'. 

  3. The Judge found she had admitted that she posted the Facebook post. 

  4. It was removed 4 months later, in February 2013.

At [183] the Judge stated:

To say that a person has for 18 years subjected their partner to domestic violence and abuse and that their children need to be kept safe from that person, tends to diminish the esteem in which that person is held by the community and/or diminish his standing in some respect and would lead an ordinary reasonable person to think lesser of that person and is defamatory.

The Judge decided that:

[248] Pursuant to s 7 of the Defamation Act, Mr Dabrowski is not required to prove special damages. Section 34 of the Act requires that any damage awarded have an appropriate and rational relationship to the harm actually suffered. The damages must be realistic.
[249] I have found that Mr Dabrowski was defamed. Mr Dabrowski has not claimed any consequential financial loss. Damages are appropriate.

The Judge award the plaintiff (the husband) $12,500, as well as interest on that money and also his legal costs.

The takeaways from the case

  1. We should not feel powerless or in a weak bargaining position when someone defames us on Facebook, because it is realistic to go to Court over it.

  2. You should hire lawyers who are conscious of the realities of legal costs (and) who will manage the case so that decisions are made along the way that maximise the recovery of legal costs from the other side.

 

How do Courts decide your defamation damages?

 

Uniform defamation legislation exists across the states. In Western Australia, the relevant act is the Defamation Act 2005 (WA).

Where a person’s reputation is injured by the publication of defamatory material the matter is actionable without proof of damage (Defamation Act s 7).  

The cause of action is generally not available to corporations. If you are a charitable entity or a corporation which employs fewer than 10 people, then you may be able to bring defamation proceedings (Defamation Act s 9).

Under the uniform defamation laws the offence is actionable once a communication of a defamatory imputation about a person is made to a person other than the plaintiff. This is usually described as publication. A publication is defamatory if it tends, in the minds of ordinary, reasonable people, to injure the victims’ reputation by disparaging him/her, causing others to avoid or shun him, or subjecting him to hatred, ridicule or contempt (John Fairfax & Sons Ltd v Punch (1980) 31 ALR 624 per Brennan J; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 71). 

Therefore, while the plaintiff does not have to prove any special damage to their reputation, they do carry the onus of having to prove that a defamatory imputation was published and provide particulars of the publication (Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 at 192-4 per Hunt J).

What are the potential damages?

Once the plaintiff shows that they have been defamed, then unless a defence is shown, they must be awarded damages, even if only nominal (Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 258 per Mahoney JA).

The legislation provides that the state of mind of the defendant is not relevant to damages except insofar as it affects the harm sustained by the plaintiff (Defamation Act s 36).

Damages for non-economic loss, except in circumstances of aggravation, are capped at $381,000 (Defamation Act s 35; Defamation (Damages for Non-economic Loss) Order 2016).

There must be an appropriate and rational relationship between the harm sustained and the damages awarded (Defamation Act s 34). Exemplary or punitive damages cannot be awarded for defamation (Defamation Act s 37). However, compensatory damages may be affected by circumstances of aggravation.

Factors which may mitigate damages are (Defamation Act s 38):

  1. The defendant has apologised
  2. The defendant has published a correction;
  3. The plaintiff has already recovered damages re another publication having the same meaning or effect;
  4. The plaintiff has already brought proceedings re another publication having the same meaning or effect;
  5. Plaintiff has agreed to receive compensation re another publication having the same meaning or effect.

Damages are not assessed by reference to depreciation in the value of a plaintiff’s reputation, but by what is required to compensate for injury to reputation, as a remedy for injured feelings and to vindicate the plaintiff for having been publicly defamed (Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60, 61, 70). Under the uniform defamation laws. The assessment of damages is determined by the judge not jury (Defamation Act s 22).

Compensatory damages are classified as damages for:

  1. Injury to reputation, note that evidence of previous bad reputation may mitigate damages however will not prevent a plaintiff from recovering completely (see Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 Cf. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 806, 807);
  2. Social damage for being shunned and avoided;
  3. Injury to feelings, including grief and distress, anxiety, loss of self-esteem and outrage;
  4. Injury to health; and
  5. Special damage.

Some recent cases

In Dods v McDonald (No 2) [2016] VSC 201 the plaintiff was a police officer involved in the shooting death of a 15 year old boy. In a coronial inquest the coroner exonerated the plaintiff of personal responsibility and found that he had not contributed to the death, and had responded within the limitations of his training. The defamatory publications were made by the defendant via a website and were published from April 2012 until July 2012 when they were removed by request. They contained imputations that the plaintiff was a ‘monster’ who had ‘executed’ the teenager and committed the crime of manslaughter. Even though the scope of the publication was not large, there was no apology, and the grave nature of the defamations was reflected in the damages awarded (at [69] – [74]). The judge awarded damages of $150,000.

In Jeffrey v Giles [2015] VSCA 70 the appellants operated a quarry adjacent to the respondents’ land. The respondent created a website which contained defamatory imputations that the appellants had provided inaccurate information and given false testimony at hearing in relation to approval of the quarry. The judge at first instance found that the appellants were entitled to damages personally, distinct from the corporate entity which ran the quarry, due to the nature of the imputations. The judge awarded $12,00 and $8,000 to each of the appellants. On appeal, the Court of Appeal found that the damages were so low as to be inappropriate, and ordered damages of $75,000 and $65,000 to each appellant.

In Gacic v John Fairfax Publications Pty Ltd [2015] NSWCA 99 and online and in-print review of the appellant’s restaurant was found to be defamatory by implying it sold unpalatable food, provided bad service, and that the owner was incompetent. The three appellants were originally each awarded $160,000 plus interest. There was an appeal that the damages awarded were manifestly inadequate and a cross-appeal that the damages should be reduced for mitigation. Ultimately the Court of Appeal held that damages should be increased to $180,000 plus interest, however by virtue of the cross appeal, they should be then reduced to $175,000 plus interest to take into account the mitigation factors.

As the range of damages awarded vary widely on a case by case basis depending on the factual circumstances it is wise to obtain legal advice at the outset.

 

Defamation in the workplace

 

If you have been defamed at work you may be entitled to compensation for defamation.

Generally, statements made at work are no different to any other statement.

If somebody defames you at work, whether by saying something to other colleagues or co-workers, or to clients or to your boss, either in person or in a defamatory email or otherwise, you may have a case in defamation and be able to seek damages. 

Defamation at work is generally only protected where a valid defence under the Defamation Act 2005 (WA) is available.  

The most common defence in workplace defamation situations is the defence of qualified privilege. 

Qualified Privilege

A defamatory statement, however, if made to a superior, or to a HR person as part of a formal complaints or investigation process, then it may be protected. 

This is because qualified privilege attaches to statements where the recipient has an interest in having the information, and the statement is made while providing that information, if the person acted reasonably in the circumstances (Defamation Act 2005 (WA) s 30(1)).

So a statement made concerning a persons’ performance for instance, if made to a superior and appropriately in order for the superior to be able to assess that person’s performance or investigate further is likely to be protected. 

In Boland v Dillon (2011) 243 CLR 298  the High Court of Australia decided that in some cases there are duties to advise the company of accusations against a company employee or to discuss activities by an employee or client which might be detrimental to the company or affect the efficiency of the company’s business. In these circumstances, the defence of qualified privilege might be available. 

However, if the person acted maliciously and intended to injure your reputation then they will not be protected by the defence (Defamation Act 2005 (WA) s 30(4)). 

Examples

There have been many cases where a person has been defamed in the workplace by a co-worker and has recovered damages. 

In Bristow v Adams [2012] NSWCA 166  the Court found that a letter sent to the HR manager of the company contained defamatory meanings about a supervisor, and awarded $10,000 damages. 

In Tassone v Kirkham [2014] SADC 134  an email was sent by one prison officer using another prison officer’s email which read “Hello people, just a note to say that I am a homosexual and I am looking for like-minded people to share time with”. The plaintiff went on sick leave, suffered stress and anxiety and was unable to continue in his position. He was awarded $75,000 for non-economic loss.

 

Offers to make amends

 

Once a defamatory statement has been published, and the publisher served with a valid concerns notice, the next stage of the process is for the publisher to (if they desire), to make an offer to make amends. 

Statements or admissions made in connection with the offer are not admissible as evidence in legal proceedings if commenced (Defamation Act 2005 (WA) s 19). 

An offer to make amends must be made within 28 days of receiving a concerns notice (Defamation Act 2005 (WA) s 14(1)). If no concerns notice has been issued, then an offer to make amends may be made any time prior to the defence being served in the proceedings (Defamation Act 2005 (WA) s 14(1)). 

The offer to make amends must: 

  1. Be in writing; 
  2. Say that it is an offer to make amends; 
  3. Say which of the defamatory imputations it relates to; 
  4. Offer to publish a reasonable correction; and 
  5. Offer to pay expenses reasonably incurred by the aggrieved person up until that point, including the expenses incurred in considering the offer (Defamation Act 2005 (WA) s 15). 

The offer to make amends may, but does not have to, include an offer to publish an apology or to pay compensation (Defamation Act 2005 (WA) s 15(1)(g)). It can also be withdrawn at any point before it has been accepted, and a different offer to make amends put forward (Defamation Act 2005 (WA) s 16). 

However, if the offer to make amends is accepted by the aggrieved person, and the publisher carries out the terms of the offer, then the aggrieved person cannot commence proceedings against the publisher with respect to that defamation (Defamation Act 2005 (WA) s 17). It will be a defence to any proceedings. 

If the offer is not accepted, and proceedings are commenced, then the offer to make amends is a defence to the proceedings if:

  1. It was made as soon as practicable after the publisher became aware the publications might be defamatory; 
  2. The publisher was ready and willing to carry out the terms of the offer; and
  3. It was a reasonable offer in all the circumstances (Defamation Act 2005 (WA) s 18(1)). 

A court will consider any matters it thinks relevant when determining whether the offer was reasonable (Defamation Act 2005 (WA) s 18(2)). 

Case Example - Zoef v Nationwide News Pty Ltd [2016] NSWCA 283

In Zoef v Nationwide News Pty Ltd the appellant was a tailor who worked out of his family home. The respondent published an article in The Daily Telegraph titled ‘Tailor’s alter ego as a gunrunner’. The article claimed that the appellant was involved in smuggling weapons into Australia and identified him by name and with a picture. The appellants claim was dismissed based solely on the defence that a reasonable offer to make amends had been rejected. 

The offer to make amends offered to publish a clarification, to pay expenses reasonably incurred up to and including consideration of the offer, and remained open until the first day of the hearing. It also asserted that the respondents were ‘ready and willing to perform the terms of the offer immediately on acceptance’ ([25]). The proposed clarification was also annexed to the offer. 

The appellants’ solicitors accepted the offer ‘subject to clarification’ which required the apology to be in a box 40mm high and two columns wide with the title “Apology” in bold font, and the apology had to be on page 2 or 3, or at the very least the same page as the original article had appeared ([27]). 

The respondents treated this as a counter-offer which they rejected. They stated the apology would be placed in the ‘For the Record’ page as per standard practice at the newspaper. They withdrew the original offer to make amends some 2 and a half months after making it an issued a new, renewed offer ([28], [29]). 

The renewed offer was on the same terms, provided an example of the apology in the ‘For the Record’ section, and also offered compensation of $20,000. This remained open until they filed their defence which stated that the appellant had ‘failed to accept the offer’ ([29], [30]). 

The day before the hearing the appellant’s solicitors attempted to accept the renewed offer but it was not at issue in the proceedings that this acceptance was ineffective as the offer had already been withdrawn ([32]). 

The trial judge found that the respondents were entitled to the defence as they had made an offer as soon as practical, were ready and willing to perform, and the offer itself was reasonable at the time it was made ([55], [56]). 

On appeal, it was accepted that the test of reasonableness is objective. However, it was held that the amount of compensation offered was not reasonable considering the seriousness of the defamatory imputations and the significant hurt they caused the appellant ([76] – [78]). The appeal succeeded and the appellant was awarded $150,000 damages.

 

Are you a victim of 'revenge porn'?

 

In Wilson v Ferguson [2015] WASC 15 the Supreme Court of Western Australia dealt with a "revenge porn" case.

What happened?

The plaintiff and defendant were each employed at a Fortescue Metals Group mine site as fly-in-fly-out workers. They met in 2011, moved in together in 2012, and were together until August 2013 when the relationship broke down.

During their relationship, the plaintiff and defendant exchanged sexually explicit photos of each other. The defendant also obtained, from the plaintiff’s phone, 2 sexually explicit videos of her, which he undertook not to show to anybody else.

The relationship deteriorated as the plaintiff suspected the defendant was cheating on her.

In August 2013, she texted him saying she wanted nothing to do with him.

In response, at 5.20 PM on 5 August 2013 the defendant posted via his Facebook page, 16 explicit photos and 2 videos of the Plaintiff either naked or semi-naked and engaged in sexual activities. They were accompanied by the caption ‘Happy to help all ya boys at home… Enjoy!’

The photos and videos were available to his 300 ‘Facebook friends’, many of whom worked on the same mine site. The photos and videos were taken down by the defendant at 7.00 PM that night, in response to requests from the plaintiff via text messages.

Because of the images being published, the plaintiff could not sleep, undertook counselling, and was unable to work and took leave without pay until 30 October 2013, losing wages of $13,404.

The defendant’s employment at the mine site was terminated on 14 August 2013.

Summary of the law the Judge relied on

The Defendant did not take an active part in the proceedings other than filing a defence, and was not present at the trial.

The Judge inferred that the defendant wanted to cause the plaintiff extreme embarrassment and distress, and was aware the images were private and he did not have the plaintiffs’ consent to show them to any other person (at [33]).

The Judge adopted the principle described by the Court in Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39, 50, in relation to proceedings for a breach of confidence. That is that a court will restrain the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged (at [43]).

The essential elements of an equitable action for breach of confidence are that the information was of a confidential nature, that it was obtained in circumstances importing an obligation of confidence, and that there was unauthorised use of the information (at [46] citing West Australian Newspapers Ltd v Bond [2009] WASCA 127).

The Judge referred to Gleeson CJ’s comments in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63, [34] – [35], that a private image may constitute confidential information, and that “the requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private” (at [53]).

For the reasons below, the Judge found that the defendant had breached his equitable obligation owed to the plaintiff to maintain the confidentiality of the images (at [55]).

Firstly, the intimate images of the plaintiff had the necessary quality of confidence about them, which was clear from their explicit nature, and the discussions between the plaintiff and defendant in which the plaintiff emphasised their deeply personal nature ([56]).

Second, the circumstances in which the defendant obtained the images imposed an obligation of conscience to maintain the confidentiality of the images ([57]). The nature of the photographs and the circumstances in which they were obtained made it obvious to a reasonable person standing in the defendant’s shoes that the images were for his eyes only and not to be disclosed to anyone else. Such disclosure would cause extreme embarrassment and distress to the plaintiff, which in fact was the whole reason for his publishing the images ([58]).

Third, the defendant clearly misused the images by making them available for viewing and downloading to hundreds of Facebook friends, many of whom worked with both the defendant and the plaintiff. This was extremely distressing to the plaintiff as shown by her needing to take time of work and undertake counselling ([59]).

Why did the Judge award $48,404?

The Judge granted a permanent injunction to prevent the defendant from publishing photos or videos of the plaintiff engaging in sexual activities or in which the plaintiff is naked or partially naked. In addition, the Judge awarded equitable compensation for the breach of confidence.

The Judge referred to the case of Smith Kline & French Laboratories (Aust) Ltd v Department of Community Services and Health (1990) 22 FCR 73 as authority for the Court’s inherent jurisdiction to grant relief through monetary compensation for the breach of an equitable obligation, whether of trust or confidence (at [69]).

However, the question was whether equitable compensation could be awarded to compensate the plaintiff for non-economic loss (embarrassment and distress). Until recently, equitable compensation was only awarded to compensate for economic loss ([72]).

The Judge relied on Giller v Procopets [2008] VSCA 236 in which the Victorian Court of Appeal held that monetary compensation for emotional distress caused by the release of confidential personal information is available in the exercise of the Court’s inherent equitable jurisdiction ([73] – [78]).

The Judge found that technological advances have increased the ease and speed with which communications and images can be disseminated, therefore in many cases there will be no opportunity for injunctive relief ([80]).

Therefore, the approach taken in Giller, is an appropriate incremental adaptation of the established equitable principle, to accommodate the nature of electronic communications in contemporary Australia ([82]).

The Judge held that compensation should take account of the fact that the publication was intended to cause harm to the plaintiff, however the plaintiff had not sustained a psychiatric injury, therefore the amount should not be disproportionate to amounts commonly awarded for pain and suffering in tortious personal injury cases ([85]).

He awarded $35,000 in addition to economic loss of $13,404.

What about legal costs?

The plaintiff sought indemnity costs. However, the Judge applied the principles set out by the Court of Appeal in Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S), [10], that the discretion to award indemnity costs may be exercised where the unsuccessful party has engaged in unreasonable or improper conduct, such as persisting in a case which is hopeless (at [88]).

The Judge considered that the defendants’ failure to admit the plaintiff’s claim was not so unreasonable as to justify awarding indemnity costs, the plaintiff was simply put to proof of her case ([89]).

Therefore, the Judge ordered the defendant pay the plaintiff’s costs of the action.