Defamation dollars on the increase

The outcomes of defamation court cases can represent a temperature check on society’s views and values – or at least the judiciary’s interpretation of that temperature.

A number of recent decisions, both high and low profile, indicate a move towards a more enhanced respect for reputations and judicial disapproval for those that recklessly damage the good standing of other citizens.

The biggest defamation decision, both in the size of the damages award and the profile of the plaintiff, was the initial award of $4.5m to Rebel Wilson in her claim brought against Bauer Media.

Whilst that award was subsequently slashed to only $650K on appeal, the criticism levelled at Bauer Media in the initial judgment was blunt.  It sent a message that at least some on the Australian benches had grown impatient with the modern media’s approach to accurate reporting and the growing thirst for online ‘click bait’ traffic, driven predominantly by ever more dramatic headlines.

The reduction in the damages award should not detract from that critique of the modern media’s handling of high profile reputations: the fourth estate is now on notice that if they play loose and wild with the reputations of those who can earn substantial income from their personal brands they now face a judiciary with an appetite for retribution.  The average Supreme Court judge does not likely watch Married at First Sight or the Bachelor and will therefore likely hold a more traditional view that the average Australian is not content to have their public persona trashed (pun intended) on national television.  We also now wait with interest to see the level of damages to be awarded to Geoffrey Rush following his successful defamation claim against the Daily Telegraph earlier this month.

Perhaps an even clearer indication of the current judicial assessment of reputational damage was seen in a New South Wales District Court decision that awarded $237,967.22 to an employee of a child care centre who sought to reduce his shifts at that business (as he was legally empowered to do) and then suffered the disapproval of his boss (who owned the business) through the publication by email of a number of allegations, the most serious of which being the inference that he had been sacked due to dishonest conduct.

The key issue from a damages perspective is that the email was only sent by the centre owner to 35 recipients.  The plaintiff was not a celebrity, even at a local level, and was not working in a high powered and well paid position.  In those circumstances an award of over $200K can perhaps be considered high, as the Courts have for many years awarded relatively low damages in such cases, perhaps with an underlying objective to avoid defamation being seen as a profitable commercial enterprise.  The writer has been advising on defamation matters for almost 20 years and it is a potential legal cause of action that has always come with a health warning as to the risk of achieving a pyrrhic victory.

So where do we stand in early 2019?  The media and public at large are on notice that intentionally, recklessly and in particular perhaps maliciously trashing reputations is not considered acceptable by the Australian Courts, and the judiciary is happy to critique such conduct through higher damages awards.  This is a good development.  Not because the writer specialises in defamation disputes, but because it goes some way towards redressing what was an ever increasing imbalance between liability and accountability for actions online, as opposed to old fashioned ‘offline’ activity. 

The internet was increasingly embracing the concept that it was the ‘wild west’ where anything goes and you could never be called to account.  Whilst that is the very opium on which the large social media websites thrive and sell marketing, it is not good for society as a whole.  In fact, it is perhaps one of the biggest legal, social and political challenges that we currently face.  The online world now presents as one of the most significant dangers facing our children.  It can impact their mental health in ways that the worst playground bullies of our youth could only dream of.

The more that the Courts, the Police and our schools are willing to really tackle and, where necessary, punish bad online conduct, the better.  Redressing the balance has to start somewhere, and those three represent the central pillars of our communities when it comes to moulding acceptable community norms.

Cove Legal specialises in resolving legal disputes with particular expertise in bringing and defending defamation claims.  Principal Roger Blow is recognised as a media law expert, particularly in liability arising from the use of social media.  He regularly provides commentary concerning media law issues to television, radio stations and newspapers. Additional commentary on these issues provided to Channel 7 News can be found by clicking here

Roger Blow

P: +61 8 6381 0326 or e: roger@covelegal.com.au

 

This publication is not intended to provide and does not provide legal advice. You should seek professional legal advice relating to your specific situation(s) before taking any action based upon its contents.

 

New Intimate Images Law for WA comes into force today

The Criminal Law Amendment (Intimate Images) Act 2018 (WA) comes into effect today, 15 April 2019.

The new law criminalises the non-consensual sharing of intimate images, (sometimes referred to as ‘revenge porn’) and could see perpetrators jailed for up to 3 years and/or incurring fines up to $18,000.  It is also an offence to threaten to distribute an intimate image.  Where the threat is made with the intention of causing harm, the penalty is up to 7 years’ imprisonment. 

The new law also gives the court the power to compel the perpetrator to destroy or remove the images from publication.  

The sharing of intimate images (or ‘sexting’) between consenting parties is still legal, but a person who distributes those images further, without the consent of the original sender, now risks serious criminal penalties.

These new laws represent Western Australia’s first main attempt to address the new legal challenges presented by online media and the widespread use of smartphones. We suspect there is much more to come in this space.

Cove Legal Principal Roger Blow is recognised as a media law expert, particularly in liability arising from the use of social media.  He regularly provides commentary concerning media law issues to television, radio stations and newspapers. He has been involved in a number of defamation disputes and obtained injunctions in the Supreme Court of Western Australia relating to derogatory Facebook publications.

Roger Blow

P: +61 8 6381 0326 or E: roger@covelegal.com.au

This publication is not intended to provide and does not provide legal advice. You should seek professional legal advice relating to your specific situation(s) before taking any action based upon its contents. 

New Director ID laws proposed

It is being proposed that all existing and future directors of registered corporations be required to apply for a permanent identification number which will keep track of their various directorships.   

The Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019 proposes amendments to the Corporations Act 2001 making it compulsory for all newly appointed directors to apply for a unique Director Identification Number (DIN) within 28 days of becoming a director.  For existing directors, it is proposed that there will be transitional provisions giving a currently appointed director 15 months to apply for a DIN once the new requirement commences.  Those considering becoming a director within 12 months could also apply for a DIN.

With the current system, directors are only required to lodge their details with ASIC but there is no process in place to verify their identity. The new requirements will improve the traceability of a director’s relationship across all companies and allow the regulators to quickly investigate a director’s involvement in what may be repeated unlawful activity, in particular illegal phoenixing.

There will be civil and criminal penalties introduced for directors who do not have a DIN or that fail to apply for a DIN within the applicable timeframe.  A director also commits an offence if they knowingly apply for multiple DIN’s or misrepresent a DIN to a registered body or government agency.

Whilst the draft legislation was introduced to Parliament in February, experts recommend that companies prepare for its enactment.  We will keep you updated on its progress. 

Cove Legal provides legal advice on a wide range of commercial issues. We specialise in dispute work, but Principal Roger Blow’s 20+ years working in some of the largest commercial law firms allows us to address a wide range of client legal needs with fee structures that are tailored to the commercial issues being addressed.  Give us a no-obligation call to see if we can help.

 Roger Blow

P: +61 8 6381 0326 or e: roger@covelegal.com.au

This publication is not intended to provide and does not provide legal advice. You should seek professional legal advice relating to your specific situation(s) before taking any action based upon its contents.

Tax Litigation Update

At Cove Legal we are very active in the tax litigation space and two recent decisions particularly caught our eye.

Firstly in Arbuckle v Commissioner of Taxation [2019] WASC 7 Martin J dismissed Mr Arbuckle’s Appeal against the sentence imposed by the Magistrate’s Court.

The Court found that Mr Arbuckle’s long-standing failure to meet his tax obligations did warrant a 6- month suspended prison term. He was released on the undertaking to be of good behaviour for a period of two years.   

In handing down the sentence, Magistrate Huston said he needed to “send a message very clearly to Mr Arbuckle that he needs to be discouraged from engaging in this form of unlawful behaviour ever again.” 

“I also need to send a message to the broader community that the expectations in the legislation for lodging income tax returns and business activity statements is not something to fit in when life is convenient. They have to be prioritised because it’s a legislative requirement to do those things.” 

The second decision is Deputy Commissioner of Taxation v Nore [2019] WADC 27 which saw the District Court dismiss an ATO summary judgment application against Mr Nore on the basis that there was sufficient uncertainties in the ATO’s case (despite the ATO claiming Mr Nore had no defence to the claim) to justify the matters being aired in court. 

Mr Nore had been issued with a Director Penalty Notice with respect to a company that failed to remit superannuation guarantee charges.  There are a number of steps a Director can take in order to avoid personal liability in that scenario. Some of those actions were undertaken by Mr Nore with the Court observing “In the circumstances … I am struggling to see what the defendant could have done.”

The two decisions perhaps sit at opposite ends of the true litigation scale: the Supreme Court showing a willingness to endorse custodial sentences for more serious personal tax omissions whilst the District Court is resisting the Commissioner’s attempts to rely upon his procedural/legislative advantages so as to prevent arguable defences from being properly considered by the Courts.  Both show that tax disputes can very much turn on their own particular facts and circumstances and require specialist guidance.

Roger Blow

P: +61 8 6381 0326 or e: roger@covelegal.com.au

 This publication is not intended to provide and does not provide legal advice. You should seek professional legal advice relating to your specific situation(s) before taking any action based upon its contents.

 

Protecting your reputation online - some legal answers

Cove Legal’s Roger Blow will be a presenter at the Cosmetex Conference this April discussing the topic of “Protecting your reputation online - some legal answers.” With the social media world seeming at times like a legal free for all, Roger will discuss what legal action can be taken to protect business brands and personal reputations online?

Roger will provide practical examples of how he helps clients with negative (and sometimes false) social media coverage, but also guidance on the strategic considerations that need to drive those decisions. Legal spend, just like marketing spend, requires a rigorous cost / benefit analysis.

Find out more at the Cosmetex Conference 5-6 April.

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