The "Serious Harm Test" for Defamation in (Western) Australia

As a defamation lawyer in Western Australia, I am often asked about the requirements for bringing a defamation claim.

While the WA State Government has agreed with the Federal Government and other States and Territories to introduce the "serious harm test" by amending the Defamation Act 2005 (WA) at some stage, we do not yet know when this will be legislated.

Currently, the triviality defense continues to apply to all publications in Western Australia.

The serious harm test is already in effect in other jurisdictions in Australia, including New South Wales. This arose from a two-stage review of the Model Defamation Provisions.

The serious harm test replaced the triviality defence for publications in NSW made on or after July 1, 2021. For publications before that date, the triviality defence still applies and there is no requirement to show serious harm.

Under the serious harm test, plaintiffs in defamation cases must prove on the balance of probabilities that the relevant publication "has caused, or is likely to cause, serious harm" to their reputation.

The determination of serious harm may consider evidence such as the scale of the publication and its readership, as well as testimony from the plaintiff and other witnesses.

One notable case that addressed the serious harm test in Australia is Newman v Whittington [2022] NSWSC 249.

In this case, the court confirmed that plaintiffs must prove on the balance of probabilities that the relevant publication "has caused, or is likely to cause, serious harm" to their reputation, abolishing the common law rule that damage was to be presumed and not proved.

The court noted that the "obvious genesis" of the serious harm element came from the equivalent provision in the United Kingdom's Defamation Act 2013, with there being "no material difference" between the two.

In Newman v Whittington, the pleadings asserted that serious harm was to be inferred from the "inherent seriousness of the defamatory imputations" and from the plaintiff's reputation as a family mediator.

The court struck out the pleadings as they did not clearly articulate an arguable case, and therefore there was no evidential assessment of whether serious harm had been established.

However, the court granted leave for the plaintiff to replead her claims of serious harm given the "novelty of the point."

In order to show that serious harm has been established in a defamation case, it is important to collate as much relevant evidence as possible.

This may include evidence of the scale of the publication and its readership, testimony from the plaintiff and other witnesses about the impact of the publication on their reputation, and any other relevant evidence that demonstrates the harm caused by the defamation.

By thoroughly preparing and presenting this evidence, plaintiffs can help to strengthen their case and increase the chances of success in a defamation claim.

As a defamation lawyer, when the test applies, it will be my job to help my clients gather and present the necessary evidence to prove serious harm and seek justice when their reputations have been wrongly damaged.

This is an example of the type of evidence that will need to be collated to show serious harm:

…

Sarah is a successful business owner who has built a reputation for herself as a trustworthy and reliable source of products and services in her industry.

However, one day she discovers that a former employee has posted a series of false and defamatory statements about her on a popular social media platform.

These statements claim that Sarah is dishonest and untrustworthy, and they are accompanied by a series of misleading photos and videos that are meant to further damage her reputation.

Sarah is devastated by these false claims and knows that they could seriously harm her business if left unchecked. She immediately seeks the help of a defamation lawyer to help her take legal action against her former employee.

To prove serious harm in her defamation case, Sarah and her lawyer gather a range of evidence to demonstrate the impact of the defamatory statements on her reputation.

This evidence includes:

• Testimony from Sarah and other witnesses about the impact of the defamatory statements on her reputation, including any negative feedback or comments she has received from customers or business partners.

• Evidence of the scale of the publication, such as the number of views, shares, and comments on the social media posts.

• Screenshots of the defamatory statements and accompanying photos and videos, as well as any other relevant evidence demonstrating the harm caused by the defamation.

• Documentation of any financial losses or other damages suffered as a result of the defamation, such as a decline in sales or loss of business opportunities.

By presenting this evidence to the court, Sarah and her lawyer are able to make a strong case that the defamatory statements have caused, or are likely to cause, serious harm to her reputation.

With this evidence in hand, they are able to seek justice for the damage caused by the defamation and help to restore Sarah's reputation in the eyes of her customers and business partners.

The Importance of a Well-Crafted Apology in Defamation Cases

Apologising is not always easy, but it is a crucial part of maintaining healthy relationships and repairing damage caused by our actions.

As a defamation lawyer, I see firsthand the importance of a well-crafted apology. Written and signed apologies are usually a crucial element of an overall settlement of a defamation case.

According to a recent TED talk published on YouTube, good apologies generally share certain elements. Here are some key points to consider when apologising:

1. Accept responsibility for your actions. This is the "centrepiece" of an apology and involves acknowledging and understanding the impact of your actions on the other person.

2. Seek to understand the perspective of the wronged party. A good apology isn't about making you feel better, it's about trying to repair the damage to your relationship. This means it's important to put your own ego aside and try to see things from the other person's point of view.

3, Offer a sincere apology, even if your mistake was an accident. Accidents do happen, but it's important to recognize that they can still cause harm and offer a sincere apology.

4. Clearly acknowledge wrongdoing. This means admitting specifically how you messed up and showing that you understand the impact of your actions.

5. Make an offer of repair. This can be a tangible gesture, like replacing something you damaged, or a more symbolic gesture, like expressing love and respect for the person you wronged. It's important to follow through on your offer of repair and demonstrate through your actions that you are committed to changing your behavior in the future.

By considering these elements, you can craft a sincere and effective apology that helps repair damage and strengthen relationships. There are more tips on apologies in the TED talk, "The best way to apologize (according to science)" https://lnkd.in/gK6t5VQP

Yemini v Twitter International Co

The Federal Court of Australia has handed down a useful and important ruling in the case of Yemini v Twitter International Company.

The written reasons are short, but are likely to have a long-lasting impact on running defamation cases against social media platforms.

Avraham Yemini is an Australian-based journalist for the Canadian news and opinion website, Rebel News.

He filed an originating application seeking an order under r 7.22 of the Federal Court Rules 2011 (Cth) for preliminary discovery by Twitter International Company and Twitter Inc, the corporate entities through which the American microblogging and social networking service ‘Twitter’ is principally operated.

Mr Yemini sought production of documents that would help him identify an anonymous person or persons who published allegedly defamatory content about Mr Yemini on the Twitter platform, so that he could then commence proceedings against that person or persons.

The Twitter handle was @PRGuy17.

The evidence supporting Mr Yemini’s application set out the bases on which he believed that one or both of the Twitter entities had information about the identity of the anonymous Twitter user and the attempts Mr Yemini had made to identify the anonymous user to date.

The application for preliminary discovery, under r 7.22 of the Rules, was based on a cause of action in defamation.

An application for preliminary discovery under r 7.22 of the Rules is a proceeding in which the Federal Court of Australia has jurisdiction.

On the basis of the affidavit filed in support of the application for preliminary discovery, the Judge was satisfied Mr Yemini had a prima facie case for the production of the documents he sought.

An order granting leave for Mr Yemini to effect service on the prospective respondents via international registered post was made.

Fairfax Media Publications Pty Ltd v Voller

Fairfax Media Publications Pty Ltd v Voller was a case decided by the High Court in 2021.

The case concerned whether or not a newspaper publisher could be liable for defamation where the article complained of was published on an online platform that was later taken down.

The court held that, where an article is published on an online platform and then taken down, the publisher may still be liable for defamation if it can be shown that they knew or ought to have known that the article would be accessible to readers in Australia.

This is because, even though the article is no longer available on the original platform, it may still be accessible to readers through other means (e.g. through search engines).

This decision has important implications for media organisations that publish content online, as it means that they need to be careful about what they publish and take prompt action to remove anything that could be defamatory.

It also highlights the importance of ensuring that articles are not published on platforms where they can be easily copied and distributed (e.g. social media).

This case serves as a reminder that defamation law still applies to content published online, even if it is later taken down. Media organisations need to be aware of this and take care to avoid publishing anything that could be defamatory.

Malice and qualified privilege

Malice defeats the defence of qualified privilege in Australia. If a person can prove a defendant acted without malice, then they will be protected from defamation proceedings.

The law of qualified privilege in Australia is designed to protect people who make statements about others in certain situations.

This may include situations where the person making the statement is required to do so by their job, or where the statement is made in order to protect the interests of another person.

In order for the defence of statutory qualified privilege to apply, the Uniform Defamation Acts provide that the following elements must be present:

• the recipient has an interest or apparent interest in having information on some subject;

• the matter is published to the recipient in the course of giving him or her information on that subject;

• the conduct of the defendant in publishing the material in question is reasonable in the circumstances.

However, common law qualified privilege is more commonly relied on than the statutory defence in Australia. It is the most common defence in Australia in defamation.

At common law, a publication is made on a privileged occasion if:

• it is made without malice;

• it is made by a person in discharge of some public or private duty, whether legal, social or moral or for the purpose of protecting some private interest;

• it is made to a person who has a corresponding interest in receiving the communication. 

If these elements are present, then the person making the statement will likely be protected from defamation proceedings.

Qualified privilege is not an absolute defence, however, and there are some situations where it may not apply.

For example, if the person making the statement knows that it is false, or if the statement is made with the intention of causing harm to the person it is about, then qualified privilege may not apply.

Qualified privilege is a complex area of law, and it is always advisable to seek legal advice before making any statements about others that could potentially be defamatory.

Grieving parents who were defamed in emails, awarded $60K damages plus costs

I acted for Matthew and Lyndal Trott at this defamation trial.

I was Trial Counsel, together with Junior Counsel, Isaac Priddis.

The facts were tragic.

My clients’ Son, Samuel Trott, drowned in a lake near his home.

Matthew and Lyndal, were neighbours of the defendant, Ms Ansuya Rajoo.

The relationship with her broke down about 4 years after Sam died.

Sam was a toddler, who had autism.

He had wandered from the family home after a tradesperson left the front door open.

His body was found after an extensive search by community members at the lake about 600 metres away.

The coroner concluded that his death was an accident. 4 years later, the neighbour sent emails to the local police inspector and the principal of the school of the surviving siblings with a number of defamatory imputations.

These included that my clients had conspired to kill their son by conditioning him to jump into the backyard pool with a life jacket on. She said this gave him a false sense of security so that he jumped into the lake and drowned.

In assessing damages, the District Court of Western Australia found that although there was a limited extent of publication and no impact on their professional reputations, there could be no more serious an allegation than the imputation that parents murdered an infant son with autism. The emails attacked them “in the worst possible way as parents”. The impact of the allegation was significant and devastating. Their hurt in grieving their son’s death was exacerbated, being forced to relive it. They felt fear for their surviving children. They felt they needed to move house to get away from the neighbour.

Their good reputation as parents and community members was unchallenged and presumed.

The defendant made no apology. She had acted with malice. Aggravated damages were awarded and indemnity costs orders made.

You can read the decision here.

Here is a media article about the case.

Carter v Napper

I appeared for the Plaintiff in Carter v Napper [2022] WADC 25. The decision is here.

Judge Prior of the District Court of Western Australia held that 4 matters published by the Defendant were defamatory of the Plaintiff.

His Honour found that the Plaintiff was entitled to an award of damages in the amount of $30,000 and an additional $10,000 for aggravated damages.

The Court also granted the Plaintiff’s application for a final injunction and awarded indemnity costs to the Plaintiff. 

My client was the owner of a cleaning business who worked in an apartment building. The Defendant was a tenant who asserted the owner was not doing his job, was a danger to children and a paedophile. My client and his husband lived in the apartment building as well as running the cleaning and gardening business which cleaned the building. The also ran a clothing business.

The tenant, Mr Napper, lived opposite the couple.

He asserted in an email to the strata manager that my clients ran photoshoots in the building, inappropriately rented out their property, and that the age difference between Mr Carter and his husband suggested that he was a paedophile and unsafe to be around children.

Injunctions restraining Mr Napper were also made.

The case highlights the approach the Court will take where the Defendant’s conduct exacerbates the Plaintiff’s hurt following a defamatory publication and where further conduct is unreasonable in the context of settling the resulting dispute.

For these reasons, the Court agreed with my submissions that aggravated damages and indemnity costs should be awarded to the Plaintiff.

Higher cap for non-economic loss under Defamation Act

As at 1 July 2022, the cap for non-economic loss has increased.

It is now $443,000.

See here for the relevant edition of the Government Gazette.

New case - Defamation damages for $480,000

Interesting defamation article from news.com.au: Respected surgeon wins $480,000 in defamation case involving disgruntled patient

Read the judgment here.

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.