Legal Considerations In Defamation: A Comparison Of Wilson And Hockey Cases

Question:

Discuss about the Law for Wilson v Bauer Media Pty Ltd & Anor.

Any person whose reputation has been affected through any material which identified them and published, then such person whose reputation has been affected has right to file suit for defamation. Law of defamation deals with the protecting the reputations of a person and this law provides right to the person whose reputation is affected to take legal action against the attacker. Person can take legal action only if:

• Material was published either in written, spoken or illustrated manner to at least one person other than who published.
• Material must be identified the plaintiff either directly or indirectly.
• Material must be defamatory in nature for the plaintiff (Law handbook, n.d.).

If above stated elements are established then it is on the publisher to present evidence for defend the claim of plaintiff. It is assumed by the Court that defamatory material cause damage to the plaintiff, which means no burden is imposed on plaintiff to prove that he suffer damage. In this paper, two cases that are Wilson v Bauer Media Pty Ltd & Anor [2017] VSC 521 and Hockey v Fairfax Media Publications Pty Limited [2015] FCA 652 are compared for the purpose of understanding the legal considerations related to professional practice. Both the cases are related to defamation and judgments of both the cases show different legal considerations. Lastly, paper is concluded with brief conclusion.

Justice Dixon gave his judgment on 13^th September 2017 in case in Wilson v Bauer Media Pty Ltd & Anor [2017] VSC 521, and this judgment was gave in Supreme Court of Victoria. This decision was not taken from precedent because this decision includes high award of damages in the law history of the defamation in Australia. This case set record of damages that were AUD 4,578,472, because decision taken by justice Dixon does not strictly stick to cap related to general damages.

During the period of 18^th May 2015 and 20^th May 2015 numbers of articles were published by Bauer Media Pty Ltd and Bauer Media Australia Pty Ltd. One of these articles was published through printing edition and other 7 articles were published on website which cause effect on public that Mr. Wilson was fake and liar. As per the claims made by article, Wilson invented fake stories for making her future in Hollywood. These claims further state:

• Wilson stated that she was 29 but in actual she was 36.
• She was using fake name ‘Rebel Wilson’, and her actual name was Melanie Elizabeth Bownds.
• She also lied about the background and other aspects of her life (Lexology, 2017).

The defamatory material reached the United States, and also spread through televisions, radio, social media, and the entertainment industry.

There was one more case law Hockey v Fairfax Media Publications Pty Limited [2015] FCA 652. In this case, Court gave its judgment on 30^th June 2015, and decision was taken by Justice White of the Federal Court. In this Federal Treasurer Joe Hockey file his claim of defamation against the Fairfax Media. Case was directed through series of articles, twitters post and advertising signs and placards which published in the three newspapers of Fairfax media on 5^th May 2014 that are The Sydney Morning Herald, The Age and The Canberra Times. Article which gained most attention and also raise particular concern was the article named as Treasurer for sale, and this article was published in two newspapers of Fairfax.

The Hockey v Fairfax Media Publications Pty Limited [2015] FCA 652 Case

This case was the battle between the one of the most senior personality of politics and publishers of oldest newspapers, and it can be say that this case highlights the central difficulties related to defamation law.

Article Published in the newspaper states that Mr. Hockey was providing special access to particular group in exchange of donations providing to Liberal Party via a “secretive” fundraising body, and the North Sydney Forum. However, activities related to these institutions were not disclosed before the authorities of election funding.

For the above stated issues, case was file by Mr. Hockey against the respondent that was the publishers of SMH, The Age, and The Canberra Times, for defamation. Mr. Hockey stated that article published cause following defamatory imputations:

• Article reflect that he accept bribes for making the decision he made as Treasurer of the Commonwealth of Australia.
• He was prepared to accept the bribes for making the decision he made as Treasurer of the Commonwealth of Australia.
• He solicits the payments corruptly for making the decision he made as Treasurer of the Commonwealth of Australia.
• He was prepared to corruptly solicit the payment for making the decision he made as Treasurer of the Commonwealth of Australia.
• He sells the privilege access to particular group in exchange of donations, and this group includes business people and business lobbyist.
• He gives permission to the liberal party which whom he was associated to accept money as bribe (Time base, 2015).

Above stated case are two important cases of defamations and facts of both the cases clearly states that cases deal with the law of defamation. However, in the both the cases Court consider different aspects of law and applied various factors to conclude the case. Both the cases involve different legal proceedings which clear the doubt related to defamation law (The Conversation, 2015).

Wilson commenced the proceeding on the ground that she her feelings, credit, and reputation had been affected and also she had been humiliated. Claim for general and special damages were filed by Wilson for loss of earnings and other effects in the duration of 18 month period that was May 2015 until the end of 2016. She further claimed that she suffered loss of AUD 6.771 million. Claim filed by defendant were denied by Wilson, and defendants raise defense of justification, triviality, and qualified privilege. Defenses made by respondents were rejected by the Court, and Court further found that articles which were published in newspapers conveyed false information that Wilson was a serial liar and she had misrepresents every aspect related to her life. Therefore, this statement causes injury to the feeling of Wilson and also affects her reputation as well.

In this case, total AUD 4,578,472 damages were awarded by justice Dixon in two forms:

Court paid almost 650000 as general damages which also includes aggravated damages. Ordinary form of general damages includes capped of AUD 389000, by section 35 of the defamation Act 2002. Court has power to change the cap but in some limited circumstances only when Court believes that aggravated damages are necessary for defamatory matter. In this case, Judge provides aggravated damages after finding following circumstances:

• Respondents fail to investigate the matter with due care before publishing the allegations which were defamatory in nature.
• Respondents were aware that allegations they imposed on plaintiff were false in nature, but still they published the same.
• Defendant repeated the offending imputations by circulating the information.

Comparison of the Two Cases

Therefore, ordinary application of the cap was rejected by the judge, and judge stated in this respect that provided damages would be considered adequate for the purpose of convincing the public that allegations imposed on Wilson was false, and these damages were also awarded because public conclude that damages articles were true in nature.

Court also give special damages for Ms. Wilson in respect of loss of earnings by losing the opportunity of new screen’s because of the defendant’s publication. Special damages claims were the claim which was filed because of the earnings opportunity lost by Wilson between the period of 2015 until the end of 2016, as she get limited lead roles in the films during that period. Justice further highlighted that this tort was wholly committed in Australia and because of the occupation and fame of the Wilson “sting was repeated by a reasonably foreseeable grapevine effect" she suffer special loss, and it was considered as essence of loss of opportunity (Supreme Court of Victoria, 2017).

In case Hockey v Fairfax Media Publications Pty Limited, Court decided on maliac because of the improper conduct of Mr. Darren Goodsir who was the chief editor of Sydney Morning Herald. He acted in improper purpose by not conducting proper investigation of the matter which effects the reputation of Hockey Joe. Court concluded that, objectivity was lost by Goodsir and if not his desire to get back at Hockey, then he must choose some less provocative headline for his article. Therefore, conduct of Fairfax while publishing the article cannot be considered as reasonable and because of this Fairfax were actuated malice while publishing the articles. Any defense related to qualified privilege would fail.

However, Court does not give emphasis on the content of article but Court mainly considers the publication and distribution of articles. Court further stated that, articles were not considered as defamatory but there were number of peoples who read placards who did not read the articles and for this court awarded $120000 as damages. There were numbers of who reads tweets, especially those who did not download the articles and for this court awarded $ 80000 as damages. This decision was considered as big relief for hockey and their team and little misfortune for Fairfax media.

In this case, award of damages were unprecedented in nature and this case was exemplified by the decision of Justice Dixon in which he does not applied the statutory cap. Decision taken by Justice Dixon raised number of questions related to quantification of damages in future case laws related to defamation law in Australia.

Conclusion

However, this case also inspired those claimants who want to take legal action in hope of receiving similar defamation awards, but with the awareness of claimants that occupation and fame of Ms. Wilson make this case rare and different from others. In this case, income of Ms. Wilson is directly related with her reputation, and these were some factors which result in substantial awards in both general and special damages.

There were number of cases, in which it was really difficult to determine the effect on reputation of person, but in this case Justice Dixon had evidence before him for through which he can easily calculate the amount related to opportunities lost by Ms. Wilson and these opportunities were unique because of her personal circumstances. 

On the other and, in case law Hockey v Fairfax Media Publications Pty Limited [2015] FCA 652 decision of the Court mainly consider the sale related to article and not the story which was conveyed by the article because story was not found to have defamed. Therefore, when it was proved that Fairfax Media was guilty, then also Court decided to lie on the ground related to promoting the material rather than the article and headline itself. Decision taken by justice Twist in this can be considered as novel twist and it also highlights some of the legal pitfalls related to social media such as twitter and Facebook (Whitbourn, 2015).

It must be noted that, Justice White state difference with Charleston v News Group Newspapers Ltd [1995] 2 AC 65, and in this case two actors of television were defamed by the article of the newspaper named as "Porn Shocker for Neighbours Stars" which also featured doctored images from a computer game. In this case, UK decision was given. In this case, Court made it clear that headline and photographed should be read in the context of newspaper article but in case Hockey v Fairfax Media Publications Pty Limited, Justice White said that words “Treasurer for Sale" considered as different complexion when they were reproduced in the isolation of tribunal.

Conclusion:

Therefore, case law Wilson v Bauer create the changes occurred in calculation related to damages for defamation cases decided in future. However, this case was also considered as lesson for tabloid media approach to covering the stories related to high profile celebrities by the given the potential exposure to both general and special damages awards for those publications which are defamatory in nature. This case mainly highlights the need of vigilant by checking the publications and vetting of ay sources.

In case law Hockey v Fairfax Media Publications Pty Limited, decision taken by Court mainly consider the selling of the article and not the substantive story which was not found to have defamed. Therefore, when case of defamation found proven against the Fairfax Media, then also Court decided to lie on the ground related to promoting the material rather than the article and headline itself. Therefore, decision taken by justice Twist in this can be considered as novel twist and it also highlights some of the legal pitfalls related to social media such as twitter and Facebook

References:

Law handbook. Defamation and your rights. Viewed at: https://www.lawhandbook.org.au/11_02_00_defamation_and_your_rights/. Accessed on 9^th October 2017.

Wilson v Bauer Media Pty Ltd & Anor [2017] VSC 521.

Hockey v Fairfax Media Publications Pty Limited [2015] FCA 652.

Lexology, (2017). Rebel Wilson’s pitch perfect damages award in defamation case. Viewed at: https://www.lexology.com/library/detail.aspx?g=c4413e34-95e2-426a-8c2c-5af8820a2723. Accessed on 9^th October 2017.

Supreme Court of Victoria, (2017). Judgment summary - Wilson v Bauer Media Pty Ltd [2017] VSC 521. Viewed at: https://www.supremecourt.vic.gov.au/home/law+and+practice/judgments+and+sentences/judgment+summaries/judgment+summary+wilson+v+bauer+media+pty+ltd+2017+vsc+521. Accessed on 9^th October 2017.

Time base, (2015). Hockey v Fairfax: Defamation - The Substance Survives but Not the Spin. Viewed at: https://www.timebase.com.au/news/2015/AT250-article.html. Accessed on 9^th October 2017.

The Conversation, (2015). Hockey v Fairfax should start the debate on defamation law reform. Viewed at: https://theconversation.com/hockey-v-fairfax-should-start-the-debate-on-defamation-law-reform-44012. Accessed on 9^th October 2017.

Federal Court of Australia, (2015). Hockey v Fairfax Media Publications Pty Limited [2015] FCA 652. Viewed at: https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2015/2015fca0652. Accessed on 9^th October 2017.

Whitbourn, M. (2015). Joe Hockey v Fairfax case highlights costs and risks of defamation litigation. Viewed at: https://www.smh.com.au/federal-politics/political-news/joe-hockey-v-fairfax-case-highlights-costs-and-risks-of-defamation-litigation-20150722-gii69k.html. Accessed on 9^th October 2017.

Charleston v News Group Newspapers Ltd [1995] 2 AC 65.