Pre-Action Discovery in Defamation Cases: An Overview

When confronted with a potential defamation action, a critical stage that can significantly shape the trajectory of the case is pre-action discovery.

This process can involve obtaining relevant documents from the potential defendant, before formal proceedings are initiated.

It helps the plaintiff ascertain if there is a viable cause of action to pursue.

However, navigating the legal intricacies surrounding pre-action discovery in defamation cases can be challenging.

The Purpose of Pre-Action Discovery

The primary purpose of pre-action discovery is to assist a potential plaintiff who believes they may have a cause of action, but lacks specific details or evidence to substantiate their claim.

It can be particularly useful in defamation cases, where certain details may only be accessible to the potential defendant.

The Legal Framework

The Rules of the Supreme Court 1971 (WA) (RSC), specifically Order 26A rule 4, governs pre-action discovery in Western Australia for documents in the “custody, power or possession” of a potential defendant.

This rule provides that pre-action discovery can be ordered if the court is satisfied that the applicant may have a right to obtain relief from the court against a person, but can't ascertain certain details to initiate a proceeding.

Threshold for Pre-Action Discovery

The threshold for pre-action discovery is set high to prevent abuse of process.

As established in the case of Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14, the applicant must show they may have a right to relief, not merely a suspicion or speculative claim.

The test is an objective one and requires more than a mere assertion, conjecture, or suspicion.

Case Law Guidance

Several key cases provide further guidance.

In Waller v Waller [2009] WASCA 61, it was held that there must be some tangible backing or objective foundation that takes the existence of the cause of action beyond a mere allegation, suspicion or assertion. The applicant 'must demonstrate more than mere assertion, conjecture or suspicion, but does not have to positively establish the existence of a cause of action. What the applicant must produce is evidence showing that he, she or it may have a cause of action'.

In McCarthy v Dolpag Pty Ltd [2000] WASCA 106, it was emphasised that being wrongly subjected to an order for pre-action discovery can be a serious invasion of privacy.

In Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14 it was held there must be evidence objectively indicating - beyond the mere assertion, conjecture or suspicion of the applicant - that all facts necessary to give rise to a right to curial relief may be able to be established.

Balancing Act

Courts have to perform a delicate balancing act in pre-action discovery applications.

They must weigh the potential invasion of privacy and the oppressive nature of the order against the applicant's need for information to substantiate their claim.

As such, courts exercise caution and restraint in ordering pre-action discovery.

A Closer Look: BWS v ARV (No 2) [2021] WASCA 62

In BWS v ARV (No 2) [2021] WASCA 62, the plaintiff provided several pieces of evidence to substantiate their claim that they might have a substantive case against the defendant. These included details about their relationship with the potential defendant, the nature of alleged defamatory statements, and the reasoning behind their belief that the potential defendant was the source of these statements.

The parties were formerly married and had been involved in acrimonious proceedings in the Family Court of Western Australia (paragraph 5). The plaintiff was also engaged in separate proceedings before the Islamic Religious Council of Singapore (IRCS) involving a trust dispute (paragraph 5).

The plaintiff provided evidence of specific statements made in the IRCS proceedings that they considered to be defamatory and damaging to their personal life and affairs (paragraph 7). These included allegations about the plaintiff's religious practice, responsibilities as a parent, professional conduct, and personal and financial management.

The plaintiff believed that these defamatory statements were based on comments made by the potential defendant to one or more of the other parties in the IRCS proceedings (paragraph 8). The plaintiff's affidavit detailed the reasons for this belief, including their previous marital relationship with the potential defendant and the lack of other potential sources for the information contained in the defamatory statements (paragraph 9).

The court noted that while the plaintiff was able to present a logically consistent argument supporting their belief that the potential defendant had provided the defamatory information to the other parties (paragraph 44), the evidence did not go beyond this belief to directly establish the nature and content of the alleged communications between the potential defendant and these parties (paragraph 51).

This left the court to consider whether the plaintiff's belief that the potential defendant may have published defamatory statements about them was sufficient to satisfy the jurisdictional requirement under Order 26A rule 4(1) of the Rules of the Supreme Court 1971 (WA) that the plaintiff may have a cause of action against the potential defendant (paragraph 52).

The court concluded that the plaintiff’s belief, while logically consistent, did not meet the threshold for pre-action discovery as set out in the Rules of the Supreme Court and interpreted in case law. The plaintiff was not able to provide the necessary evidence of the nature and content of the alleged communications between the defendant and the other parties in the IRCS proceedings. Therefore, the court determined that the plaintiff’s belief alone was not enough to establish that they may have a cause of action against the appellant for defamation.

Key Take-Aways

• Pre-action discovery can be a potent tool for potential plaintiffs in defamation cases. However, the need to protect individuals from unnecessary invasion of privacy means the threshold for obtaining such orders is high.

• Familiarity with the rules and case law governing pre-action discovery can ensure a more strategic approach to potential defamation actions.

Cases mentioned in this blog post:

• BWS v ARV (No 2) [2021] WASCA 62

• Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14

• Waller v Waller [2009] WASCA 61

• McCarthy v Dolpag Pty Ltd [2000] WASCA 106

The Newspaper Rule in Defamation Cases: Insights from Poland v Hedley [2023] WASCA 69

Defamation law is a complex area, balancing the protection of individual reputations against the importance of freedom of speech.

A key aspect in defamation cases involving media defendants is the newspaper rule, which offers special protection to confidential sources in the interests of preserving the free flow of information.

In this blog post, I explore the concept of the newspaper rule and its application in defamation cases, drawing on the recent Western Australian case of Poland v Hedley [2023] WASCA 69.

The Newspaper Rule: Definition and Purpose

The newspaper rule is neither a rule of evidence nor a rule of law, but rather a rule of practice in defamation actions (Poland v Hedley, [86]).

It generally prevents courts from compelling media defendants to disclose their confidential sources of information during the pre-trial process (ibid).

This protection against disclosure exists only prior to the hearing of the action, and not at trial (ibid, [87]).

The rule is grounded in the recognition of public interest in the free flow of information (ibid, [88]).

It supports investigative journalism, a vital ingredient of a healthy society, by allowing journalists to protect their sources' confidentiality, thus encouraging information sharing (ibid).

This protection extends to media defendants in analogous interlocutory applications, such as preliminary discovery (ibid, [89]).

The newspaper rule is designed to protect the identity of informants, not the information itself obtained from them (Poland v Hedley, [90]). However, the rule may protect the information if its disclosure would reveal the informant's identity (ibid).

The court exercises discretion in determining whether to require disclosure of a confidential source during the interlocutory stage, taking into account the interests of justice and any special circumstances (ibid, [91]).

Factors Influencing the Court's Discretion

In deciding whether to require disclosure of a confidential source at the interlocutory stage, the court considers several factors depending on the specific case.

These factors may include the manner in which the information was obtained and whether it was obtained lawfully (Poland v Hedley, [93]).

Additionally, the court may be more inclined to order disclosure if the defendants raise the identity and integrity of their confidential sources as part of a qualified privilege defense (ibid, [94]).

Special Circumstances and the Newspaper Rule

The newspaper rule may be overridden by special circumstances or if it is necessary in the interests of justice (Poland v Hedley, [92]). For instance, if the plaintiff may be left without an effective remedy due to the defendant's statutory defense of qualified privilege, the court may compel disclosure to enable the informant to be sued or joined as a defendant (ibid).

Applying the Newspaper Rule in Poland v Hedley [2023] WASCA 69

The Poland v Hedley case provides a valuable example of the newspaper rule's application and the court's discretion in ordering the disclosure of confidential sources. In this case, the court ultimately ordered the production of audio recordings of communications with the confidential source (Source B) for several reasons, including special circumstances (Poland v Hedley, [106]).

The fact that the identity of Source B was already known to the plaintiff, and that the issue revolved around the content of the communications, counted strongly against applying the newspaper rule to refuse protection (ibid, [98], [100]).

The Importance of a Concerns Notice under the Uniform Defamation Laws in Australia

The Uniform Defamation Laws in Australia require an aggrieved person to provide a concerns notice before commencing defamation proceedings.

A recent case, Hooper v Catholic Family Services trading as Centacare Catholic Family Services [2023] FEDCFAMC2G 323, highlights the significance of this requirement.

In this blog post, I discuss the mandatory nature of a concerns notice under the Uniform Defamation Laws and the implications of not adhering to this requirement.

The Uniform Defamation Laws

Defamation laws in Australia were historically inconsistent across different states and territories. However, the introduction of the Uniform Defamation Laws (these particular amendments yet to apply in WA) sought to harmonise these laws across the country, recognising the need for consistency in an era where publications can be disseminated instantaneously throughout Australia. The Uniform Defamation Laws introduced several key amendments to defamation law, including the requirement of a concerns notice before commencing defamation proceedings.

Mandatory Nature of a Concerns Notice

Section 12B(1) of the South Australian Defamation Act (DA) mandates that an aggrieved person cannot commence defamation proceedings unless they have provided a concerns notice to the proposed defendant. The concerns notice must specify the alleged defamatory imputations, the serious harm caused, and include a copy of the allegedly defamatory material.

In Hooper v Catholic Family Services, the court found that the plaintiff failed to comply with the mandatory provisions of the DA concerning the provision of a concerns notice, resulting in the summary dismissal of the defamation aspects of her claim.

Imperative vs. Directory Provisions

The High Court in Clayton v Heffron distinguished between imperative (mandatory) and directory provisions in the context of statutory requirements. Imperative provisions require strict compliance, with non-compliance rendering the resulting action null and void, while directory provisions do not have such fatal consequences, although substantial compliance is still necessary.

The court in Hooper v Catholic Family Services agreed with Gibson DCJ's view in Teh v Woodworth that section 12B(1) of the DA is an imperative provision, emphasizing the use of the word "cannot" in the provision.

Consequences of Non-Compliance with the Concerns Notice Requirement

Failure to comply with the concerns notice requirement can result in the dismissal of the defamation aspects of a claim, as demonstrated in Hooper v Catholic Family Services. The court in M1 v R1 also held that leave could not be granted to retrospectively validate defective concerns notices under the Uniform Defamation Laws.

Key Take-Aways

• The Hooper v Catholic Family Services case serves as a reminder of the importance of complying with the mandatory concerns notice requirement under the Uniform Defamation Laws in Australia.

• Failing to provide a proper concerns notice can lead to the summary dismissal of defamation claims, and such defects cannot be retrospectively remedied by amendment.

• As such, it is essential for those pursuing defamation claims to ensure strict adherence to the concerns notice provisions of the DA.

Economic Loss Arising from Defamation: Impaired Capacity to Work

Defamation cases can have a significant impact on a person's ability to work, especially when the defamatory material is published widely and causes reputational damage.

In this blog post, I discuss the issue of economic loss arising from defamation, focusing on the impairment of a person's capacity to work.

I reference the decision in Poniatowska v Channel Seven Sydney Pty Ltd [2020] SASCFC 5, as well as other relevant cases, to provide an understanding of this subject matter.

Economic Loss in Defamation Cases

In defamation cases, economic loss may be claimed by the plaintiff if they can prove that the defamatory material published has caused a negative impact on their capacity to work.

In the case of Poniatowska v Channel Seven Sydney Pty Ltd [2020] SASCFC 5, the plaintiff claimed that the publication of the defamatory material led to a relapse in her psychiatric conditions (depression and anxiety) and caused her incapacity to work. Furthermore, her loss of reputation adversely affected her prospects of obtaining employment.

Causation: Effect of Publication on Capacity to Work

To establish a causal link between the publication of defamatory material and the plaintiff's incapacity to work, expert evidence may be required.

In Poniatowska's case, the expert evidence of Dr. Czechowicz was crucial in proving that the publication had caused a relapse of her psychiatric conditions, which in turn resulted in her incapacity to work.

In some cases, the defamatory material may only be one of several contributing factors to the plaintiff's impaired capacity to work.

In Poniatowska, the court acknowledged that the defamatory publication was one of several factors that contributed to her psychological dysfunction.

Assessment of Damages for Economic Loss

Determining the appropriate amount of damages for economic loss in defamation cases can be challenging.

In some cases, a mathematical approach can be taken by multiplying the value of the lost opportunity by the percentage chance that the opportunity would have materialized. In other cases, a more holistic assessment may be required.

In Poniatowska, the court opted for a broad-axe holistic assessment of the economic loss, considering the adverse circumstances caused by the defamatory publication that impacted her earning capacity. These circumstances included the:

• exacerbation of her psychological dysfunction, which affected her job-seeking efforts, motivation; and

• capacity to seek employment in various roles.

The court ultimately assessed her economic loss at $80,000.

Key Take-Aways

• Economic loss arising from defamation can have a significant impact on a person's capacity to work.

• The Poniatowska v Channel Seven Sydney Pty Ltd [2020] SASCFC 5 decision provides valuable insights into how courts assess the causal link between the publication of defamatory material and the plaintiff's incapacity to work, as well as the appropriate damages for economic loss.

• When pursuing a defamation claim, it is essential to gather strong evidence to establish causation and to ensure that damages for economic loss are accurately assessed.

The Challenges in Assessing Damages for Defamation: Striking the Right Balance

Defamation law is an important tool for protecting individuals from damage to their reputation.

In Australia, the assessment of damages for defamation involves ensuring an appropriate and rational relationship between the harm suffered by the plaintiff and the damages awarded.

This can be a complex process, with several inherent challenges.

In this blog post, I discuss these challenges, drawing on relevant cases, including the decision in Nine Network Australia Pty Ltd & Ors v Wagner & Ors [2020] QCA 221.

The Appropriate and Rational Relationship Between Harm and Damages

Section 34 of the Defamation Act requires courts to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.

The concept of an "appropriate and rational relationship" was discussed in the case of Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327, where it was noted that reputation is not a commodity with a market value, making comparisons between awards for defamation difficult.

Furthermore, because the remedy for defamation is damages, courts must have regard to what is allowed as damages for other types of non-economic injury.

The Role of Vindication in Damages Calculations

In assessing damages for defamation, courts must consider three purposes:

• consolation for personal distress and hurt,

• reparation for harm done to the plaintiff's reputation, and

• the vindication of the plaintiff's reputation.

Vindication looks to the attitudes of others and is often considered in tandem with the first two purposes.

The appellants in the Wagner case argued that the size of the final awards was indicative of an excessive allowance for vindication.

They suggested that if a substantial sum is awarded for injury to reputation and hurt feelings, it is unnecessary to add a further sum for vindication, as the substantial sum will serve to vindicate the respondent's reputation.

However, this approach may not necessarily conform to the global assessment of damages usually employed by courts.

Comparing Awards Across Different Cases

The appellants in Wagner did not advance any arguments based on comparison with other awards of damages for non-economic loss in other cases of damages for defamation or possibly relevant awards of damages for personal injuries or false imprisonment.

This highlights the difficulty in comparing awards across different cases, as each case is unique, and there may not be a clear "external standard" against which to measure the required "appropriate and rational relationship."

Key Take-Aways

• Assessing damages for defamation is a complex process, with inherent challenges such as determining the appropriate and rational relationship between harm and damages, comparing awards across different cases, and the role of vindication in damages calculations.

• Courts must balance these factors to ensure a just outcome for both plaintiffs and defendants in defamation cases.

The Significance of a Failure to Apologise in Defamation Law: The Role in Aggravated Damages

In defamation law, the role of a defendant's failure to apologise in assessing damages for non-economic loss, including aggravated damages, can be significant.

This blog post discusses the general importance of an apology in defamation cases and its influence on aggravated damages.

Carson v John Fairfax & Sons Ltd

A starting point for understanding the role of an apology in defamation cases is the 1993 High Court decision in Carson v John Fairfax & Sons Ltd.

In this case, the court found that the absence of an apology does not necessarily aggravate damages, as it does not increase the plaintiff's hurt or widen the area of publication.

However, subsequent case law has contradicted this view, suggesting that the failure to apologise can indeed aggravate damages.

Clark v Ainsworth

In the 1996 case of Clark v Ainsworth, the Court of Appeal of NSW distinguished the passage from Carson, stating that it related to aggravated damages, not ordinary damages.

The court held that the absence of an apology could be taken into account as something that extended the publication's vitality and capability to cause injury to the plaintiff.

Ali v Nationwide News Pty Ltd

The Court of Appeal of NSW in Ali v Nationwide News Pty Ltd further held that failure to apologise can aggravate damages.

It was established that damages for failure to apologise can be awarded as part of general compensatory damages, as the harm from the original publication may be prolonged and intensified by the absence of an apology, or as aggravating compensatory damages.

Trigell v Pheeney and Herald & Weekly Times Ltd v McGregor

In Trigell v Pheeney and Herald & Weekly Times Ltd v McGregor, the relevance of a failure to apologise to aggravated damages was considered.

This cases suggested that the conduct of the defence may be taken into account as improperly aggravating the injury done to the plaintiff if there is a lack of bona fides in the defendant's conduct or it is improper or unjustifiable.

Bauer Media Pty Ltd v Wilson

In Bauer Media Pty Ltd v Wilson, the Court of Appeal of Victoria found that the defendant's failure to apologise was not justifiable or bona fide due to their knowledge of the false imputations conveyed by the articles and their motive for publication.

The failure to apologise from the outset was considered improper and justified an award of aggravated damages.

Conclusion

• Although the mere absence of an apology does not automatically aggravate damages in defamation cases, it can be a factor considered by courts depending on the specific circumstances of each case.

• The failure to apologise can prolong and intensify the harm caused by the defamatory publication and may be taken into account when assessing both general compensatory damages and aggravated damages.

At what stage should the question of Serious Harm be considered in defamation cases under the Uniform Defamation Laws?

The recent decision in GRC Project Pty Ltd trading as GRC Property Management v Lai [2023] NSWDC 63 provides an insightful look into when the issue of serious harm is addressed in defamation cases under the uniform defamation laws. (Note: the serious harm test does not yet apply in Western Australia).

Serious Harm: A Key Element in Defamation Cases

As a result of amendments that took effect on 1 July 2021, proof of serious harm is a necessary element in the cause of action in defamation cases in New South Wales (Wilks v Qu (Ruling) [2022] VCC 620 at [40]–[4] and Wilks v Qu (Ruling 2) [2022] VCC 1503 at [6]–[11]).

The purpose of establishing serious harm is to discourage the bringing of cases likely to result in modest awards where the costs are out of proportion to the damages (Newman v Whittington [2022] NSWSC 249 at [30]–[46]).

Timing and Determination of Serious Harm

Under the uniform defamation laws, the question of serious harm must be determined early in the litigation unless there are “special circumstances” (s 10A(5)).

Special circumstances, as outlined in GRC Project Pty Ltd trading as GRC Property Management v Lai [2023] NSWDC 63 at [48], include situations where:

1. The nature of the publications (e.g., slanders in a foreign language) requires the trial judge to hear the evidence and manner of publication before determining serious harm.

2. Serious harm cannot be disentangled from other trial issues, such as financial loss or the grapevine effect.

3. The determination of serious harm could take a significant amount of time, requiring many witnesses to give evidence twice, which would result in additional costs, emotional burdens, and time constraints for the court.

The court also relied on guidance from English decisions, such as Ames v The Spamhaus Project Ltd [2015] EWHC 127 (QB), where it was determined that the proceedings were "not ripe" for a preliminary hearing on serious harm, as the facts deserved further examination.

Where the burden lies

The burden of satisfying the court that there are special circumstances justifying the postponement of the determination of serious harm to a later stage in the proceedings lies on the plaintiff (Hossein v Ali (Ruling) [2022] VCC 2195 at [45]).

The Limitation Period for Defamation Cases: Factors a Plaintiff Should Consider prior to Commencing a Case

In the world of defamation law, time is of the essence.

In Western Australia, as well as other Australian states, the limitation period for bringing a defamation case is one year from the date of publication.

This truncated period was first introduced as part of a suite of amendments to promote the resolution of defamation proceedings in a timely manner and to encourage non-litigious methods of resolving disputes.

This blog post discusses the various factors and actions potential claimants should consider during the one-year limitation period before deciding whether to pursue a defamation case.

Key considerations during the Limitation Period (also serves as a checklist for potential plaintiffs)

1. Reflect and consider maturely whether the proposed litigation can be resolved without litigation: As noted in the case of Lehrmann v Network Ten Pty Limited (Limitation Extension) [2023] FCA 385, the one-year limitation period allows potential claimants time to reflect and consider whether the dispute can be resolved without resorting to legal action. Initiating a defamation lawsuit can be costly and time-consuming, so it is important to explore alternative dispute resolution methods, such as mediation or issuing a concerns notice to the publisher, as provided under Pt 3 Div 1 of the Defamation Act.

2. Consider whether the cost of litigation would be proportionate to the extent of perceived damage: Before pursuing a defamation case, claimants should weigh the costs of litigation against the potential recovery and the extent of the perceived damage. It is important to ensure that the costs of the lawsuit are not disproportionate to the potential outcome.

3. Conduct necessary enquiries as to the identity of the respondent or respondents: Identifying the correct respondent(s) is crucial in a defamation case. The one-year limitation period provides potential claimants with time to conduct necessary enquiries to accurately identify the parties responsible for the publication of the alleged defamatory material.

4. Assess the availability of sufficient material to support the claim: To succeed in a defamation case, a claimant must have sufficient evidence to support their allegations. The one-year limitation period allows claimants to gather the necessary material to establish their case.

5. Reflect on the potential impact of litigation on personal and financial well-being: Pursuing a defamation lawsuit can be a life-changing decision that may bring stress and potential adverse financial consequences. Claimants should take the time during the limitation period to consider the possible ramifications of litigation on their personal and financial well-being.

No Obligation to Commence Proceedings at the First Opportunity

In the Lehrmann case, it was held that the claimant does not have a positive obligation to commence proceedings at the first possible opportunity or in one period over another within the time set by the legislature.

The statutory task is holistic, requiring an evaluation of all relevant facts or "the circumstances" that existed within one year of the date of the publication.

As emphasized by Chesterman JA in Noonan v McLennan, a claimant does not have to account for every day or week in the limitation year, but rather must satisfy the court that it was not reasonable in the circumstances to have commenced an action within the limitation period.

Considering the Whole of the Circumstances

It is essential to recognize that while the fact that it may have been reasonable to commence proceedings for a significant period within the limitation period is material and could be determinative, the existence of this fact alone is not necessarily fatal.

As stated in Lehrmann v Network Ten Pty Limited (Limitation Extension) [2023] FCA 385 at [24], the courts will consider the whole of the circumstances when evaluating the reasonableness of commencing proceedings.

For instance, an unexpected and catastrophic event occurring towards the end of the limitation period might make it unreasonable for a claimant to commence proceedings for the first time.

In such cases, if the court's consideration of the whole of the circumstances leads them to conclude that the claimant did not commence proceedings due to the unanticipated event, the statutory test may still be satisfied.

Thus, it is crucial for potential claimants to be aware that the courts will take a holistic approach when assessing the reasonableness of commencing proceedings within the one-year limitation period.

Assessing Damages in Defamation Cases: An Overview

Defamation law exists to protect individuals and entities from false statements that could harm their reputation.

When a person or organisation is defamed, they may be entitled to compensation for the damage done to their reputation and the associated emotional distress.

In this blog post, I discuss the principles for assessing damages in defamation cases, drawing on the case of Cables v Winchester [2018] VSC 392, as well as other relevant cases, to provide a general overview of the subject.

Key Principles for Assessing Damages in Defamation Cases:

In Wilson v Bauer Media, John Dixon J summarized the well-established principles for assessing damages in defamation cases as follows:

1. Damages should provide consolation for hurt feelings, damage to reputation, and vindication of the plaintiff's reputation.

2. Damages ought to reflect the high value the law places on reputation, particularly for those whose work and life depend on their honesty, integrity, and judgment.

3. The gravity of the libel and the social standing of the parties are relevant to assessing the quantum of damages necessary to vindicate the plaintiff.

4. There must be an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.

5. The extent of publication and the seriousness of the defamatory sting are pertinent considerations.

6. The court should take into account the 'grapevine' effect arising from the publication when determining the damage done to a plaintiff's reputation.

7. Injury to feelings may constitute a significant part of the harm sustained by a plaintiff.

8. Aggravated damages are a form of compensatory damages designed to reflect aggravation caused to a plaintiff's hurt or injury by reason of some conduct of the defendant.

Factors to Consider in Awarding Aggravated Damages:

In Cables v Winchester [2018] VSC 392, the court found that an award of aggravated damages was appropriate due to the following conduct of the defendant:

- Publishing words with the sole purpose of injuring the plaintiff's reputation

- Refusing to apologize

- Not appearing in the proceeding (until the hearing for assessment of damages)

Comparative Exercise and the Importance of Context:

As noted by Hayne J in Rogers v Nationwide News Pty Ltd, engaging in a comparative exercise for damages may be misleading, as each case is unique.

However, considering awards in comparable cases can be appropriate when there is no contradictor to respond to the submissions of the plaintiff.

In Fraser, Daly AsJ highlighted the importance of context, stating that reviewing other cases can be instructive in illustrating what features the current case does not have.

Social Media Publications and Defamation: Imputations and Extent of Publication

The increasing prevalence of social media has led to a rise in defamation cases involving online publications.

This blog post discusses the legal approach to evaluating social media publications in defamation cases, specifically focusing on imputations and the extent of publication.

The analysis will draw from the case of Hockings v Lynch & Adams [2022] QDC 127, as well as referencing other pertinent cases such as O'Reilly v Edgar and Bolton v Stoltenberg.

Extent of publication

When determining the extent of publication in defamation cases involving social media, courts take into account various aspects.

These include the number of followers, shares, likes, and comments, which can serve as evidence of the publication's reach. For instance, in O'Reilly v Edgar, the court acknowledged that at least 1,000 members of a Facebook group had downloaded and read the defamatory posts.

In contrast, in Bolton v Stoltenberg, the court inferred from the evidence of reach, likes, comments, and shares that a substantial number of people had downloaded and read the material.

Context

The context in which defamatory posts are made is also a crucial factor to consider.

As articulated by Muir DCJ in Brose v Baluskas (No 6), examining the posts within the context they were posted and as part of the broader conversation on the relevant sites is essential.

Social media platforms possess particular characteristics, such as:

• inconsistent moderation,

• a propensity for false or exaggerated claims,

• the use of emojis and non-standard characters.

These factors can impact how an ordinary and reasonable reader interprets and understands the posts.

Ongoing Publication

Additionally, the extent of ongoing publication plays a significant role in defamation cases.

In Hockings v Lynch & Adams, for example, the court examined whether the defamatory posts remained publicly accessible on the internet at the time of the trial. The court found that, due to the grapevine effect, the defamatory posts had been published to an estimated hundreds of people.