Text messages to one person still found to be defamatory

March 5, 2020 Roger Blow

The recent decision of Armstrong v McIntosh [No4] 2020 WASC 31 has found that text messages referring to the plaintiff as being ‘an evil person’ were defamatory, despite being sent to only one person.

The plaintiff claimed that the text messages, sent by the defendant to his friend, were defamatory and he sought damages, including aggravated damages, as well as an injunction to restrain the defendant from making any further publications with the same defamatory meanings.

The defendant made the allegations over a series of text messages implying that the plaintiff was evil, a liar, that he had acted in such an unchristian way that his parish priest thought ill of him, that he didn’t deserve to associate with the defendant’s family and friends and that he conspired with other people to ruin the defendant by nefarious means.

It was interesting that in assessing damages, the court considered that the means of publication was a factor. Despite text messages often being informal and spontaneous in nature, the defendant in this instance wrote long, well structured, grammatically correct messages, which would be perceived by the ordinary person as being something that was expressly considered by the defendant and not an offhand remark as he had argued they were.

The court also found that whilst the gravity of the material in the texts was serious it should be weighed up against the fact that the texts were only published to one person. For this reason there was ‘minimal damage’ to the plaintiff’s reputation and that there needed to be an ‘appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.’

The plaintiff was awarded just $6,500 in damages and aggravated compensatory damages of $1,500. The court also awarded an injunction restraining the defendant from publishing the words complained of or any similar words defamatory of the plaintiff.

This decision shows that the publication of sms messages, even to just one person, can be found to be defamatory and caution should always be taken before pressing send. For us however, the decision also provides an excellent example of a plaintiff winning their defamation action and yet being awarded damages by the Court that would no doubt have been dwarfed by the legal fees that they would have spent in pursuing the action and still considerably less than the legal fees that they will likely recover from the defendant. In pure commercial terms therefore, likely a Pyrrhic victory.

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.

Roger Blow, Practice Director, 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.

Injurious Falsehood and Defamation – A Useful Distinction?

February 10, 2020 Roger Blow

Several high-profile defamation cases have recently been heard in Australian courts, but what separates ‘defamation’ from another legal term which is also increasingly being used in reputation disputes – ‘injurious falsehood’?

Defamation refers to false statements which damage a person’s reputation, whereas injurious falsehood refers to false statements which detrimentally affect a person’s or a business’ ability to sell goods or services.

The elements of a claim in injurious falsehood have been summarised by the Courts as:

1. There must have been a false statement regarding the Plaintiff’s business (either written or verbal);

2. The statement must have been publicised to a third party;

3. The statement must be made with malicious intent; and

4. The statement directly caused the Plaintiff actual loss.

Injurious falsehood concerns statements which, without necessarily having a detrimental effect upon a person’s reputation or causing them embarrassment, nevertheless have a negative economic impact.

Whilst the burden of proof under injurious falsehood requires the Plaintiff to prove an imputation to be false (which is not a requirement in a defamation action), the strategic benefit of running such an argument instead of or alongside a defamation claim is that it can provide an opportunity to seek injunctive relief.

Note though that the Courts have demonstrated limited patience where such an argument is utilised as ‘a transparent device to obtain a permanent injunction’ not available under defamation.

Roger Blow, Practice Director P: +61 8 6381 0326 or e: roger@covelegal.com.au

Defamation dollars on the increase

April 18, 2019 Roger Blow

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.

Roger Blow

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

New intimate images law for WA comes into force today

April 15, 2019 Roger Blow

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