Introduction
In the digital age, defamatory content can potentially reach vast audiences across multiple platforms. However, proving the actual extent of publication remains a critical and often challenging element in defamation proceedings. The recent New South Wales Supreme Court decision of Newman v Whittington [2025] NSWSC 275 provides valuable insights into how courts approach this issue. In this case, a family dispute resolution practitioner, Jasmin Newman, successfully sued Adam Whittington for defamatory publications across WordPress, Facebook, and Twitter over a period spanning December 2019 to October 2021. The publications contained extremely serious allegations, including claims that the plaintiff supported paedophiles, had committed fraud, and falsely claimed professional qualifications.
The Relevance of Extent of Publication in Defamation
The extent of publication is a key consideration in assessing damages in defamation cases. As noted in Ali v Nationwide News Pty Ltd [2008] NSWCA 183, damages in defamation serve three overlapping purposes: consolation for personal distress, reparation for harm to reputation, and vindication of the plaintiff's reputation. When determining an appropriate award, courts must consider both the inherent seriousness of the imputations and their reach.
The "grapevine effect" is also relevant - this recognizes that "the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published" (Hoser v Pelley [No 3] [2023] VSCA 257 at [221]; Crampton v Nugawela (1996) 41 NSWLR 176, 194-195). However, while some harm is presumed in defamation, "the extent of that harm is not" (Eppinga v Kalil [2023] NSWCA 287 at [100]).
Challenges in Assessing Online Publications
Newman v Whittington highlights several challenges in assessing the extent of publication in the digital realm:
Distinguishing between potential and actual readership: Chen J was careful to distinguish between the potential reach of publications (as indicated by follower counts) and evidence of actual consumption of the content. The court noted that "the number of followers demonstrates the potential 'readership' of each particular 'post'," but was "unable (and unwilling) to make any firm finding about actual 'readership'" (at [164]).
Interpreting social media metrics: The case demonstrates the difficulty in interpreting online engagement metrics. For instance: "although there are those number of interactions, it is not known whether one person simultaneously 'liked, commented and shared' this post" (at [160]). Such ambiguities make it challenging to determine precisely how many individuals engaged with defamatory content.
Relevance to the plaintiff's community: The court considered whether the defamatory material reached individuals within the plaintiff's professional sphere or community, noting "there was no evidence establishing that anyone within the plaintiff's professional field (or in any area related to, or in any way connected with, it) read any of the defamatory publications" (at [169]).
How Courts Assess Extent of Publication
In Newman v Whittington, Chen J took a nuanced approach to assessing publication extent:
Social media interactions: The court examined specific evidence of engagement such as likes, comments, shares, and retweets across different platforms. However, the court was cautious about drawing conclusions about actual readership from these metrics alone.
Follower numbers: While acknowledging that follower counts indicate potential reach (some platforms had 19,000-24,000 followers), Chen J recognized that this doesn't necessarily translate to actual readership.
Geographic relevance: The court considered whether interactions came from the plaintiff's community or jurisdiction, noting that Australian interactions "were extremely limited and, for many of the matters, there were none" (at [167]).
Practical approach: Acknowledging the limitations in the evidence, the court took a pragmatic approach: "the plaintiff has not persuaded me that the 'readership' (that is, the extent of the publication) was most likely anything other than limited, albeit with some – essentially unquantifiable – potential for it to be greater" (at [171]).
Damages and Extent of Publication in Newman v Whittington
Despite finding that the actual readership was likely limited, Chen J awarded Ms. Newman substantial damages of $160,000. This consisted of $150,000 for non-economic loss (including aggravated damages) plus $10,000 in interest. This award reflects several important considerations:
Inherent seriousness of imputations: The court found that the imputations (particularly those suggesting the plaintiff supported paedophiles) were "grave or extreme imputations" (at [108]). The seriousness of these allegations appears to have outweighed the relatively limited evidence of wide publication.
Prolonged harm: The court noted that the harm was "prolonged and intensified by the absence of any apology by the defendant, that the defamatory matters were never retracted... and have been persisted in during the course of these proceedings" (at [176]). The defendant continued publishing defamatory material about the plaintiff even after proceedings commenced.
Grapevine effect: Despite limited evidence of wide publication, the court allowed for the grapevine effect, accepting that "by the ordinary function of human nature, the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published" (at [177]).
The court's substantial damages award, despite limited evidence of widespread publication, suggests that the inherent seriousness of imputations and the defendant's conduct can significantly outweigh limited publication evidence when the defamatory material is particularly egregious.
Practical Implications for Defamation Practitioners
This case offers several practical lessons for defamation practitioners:
Evidence of actual readership: Courts want specific evidence about who actually consumed the defamatory material, not just potential reach. Merely establishing follower numbers may be insufficient.
Relevant readership: Focus on demonstrating that the defamatory material reached people in the plaintiff's professional or personal community, where reputation damage would be most significant.
Interpreting online metrics: Be prepared to explain what social media metrics actually indicate about readership, and acknowledge their limitations as evidence of publication extent.
Proportionate approach: Courts recognize the practical difficulties in precisely quantifying online readership. In Newman, Chen J adopted a realistic view that, while actual readership was likely limited, there remained potential for wider dissemination through the "grapevine effect" (Belbin v Lower Murray Urban and Rural Water Corporation [2012] VSC 535 at [217]).
Remedies beyond damages: The court also granted permanent and mandatory injunctions requiring the defendant to remove all defamatory content from his online platforms and restraining him from publishing similar content in the future. These remedies are particularly important in online defamation cases where the potential for ongoing harm exists.
Conclusion
Newman v Whittington illustrates that while courts acknowledge the potential for wide dissemination of defamatory material online, they require concrete evidence of actual readership when assessing damages. Nevertheless, where imputations are particularly serious and the defendant's conduct is egregious, substantial damages may be awarded even with limited evidence of widespread publication.
For defamation practitioners, this reinforces the need to focus on both the inherent gravity of the defamatory imputations and, where possible, evidence of actual readership within communities that matter to the plaintiff's reputation. As online defamation cases continue to proliferate, the approach to assessing publication extent established in cases like Newman v Whittington will remain crucial to securing appropriate compensation for reputational harm.