Discussion Questions

In 2015 Joe Hockey successfully sued Fairfax in relation to defamatory material distributed over social media. Mr Hockey was successful on a small part of the claim and failed in respect of the remainder. although he received $200,000 in damages he had to pay post of his own hefty legal costs ($850,000).

The case is one of the first major cases about digital defamation in Australia. it is controversial for a number of reasons. Was it really appropriate for a political figure to take defamation action? Was the court right in holding that links to materials in a post shouldn’t have any bearing on whether content is defamatory? . Is it y too easy for rich people to take action and too hard for less well resourced defendants to defend themselves? Are Australia’s strict defamation laws appropriate given that other countries like the US favour freedom of speech?

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Do you agree with the Court’s decision in the Hockey case. Give reasons for your view.

EX TEMPORE JUDGMENT

1. HIS HONOUR: The plaintiff commenced this action in defamation by a Statement of Claim filed on 6 June 2013. A Defence was filed and later an Amended Defence.

2. The Amended Defence was struck out by her Honour, Judge Olsson, on 18 October this year. In addition her Honour entered judgment for the plaintiff and set the matter down for the assessment of damages today.

3. In considering the assessment of damages I have heard from two witnesses and also read a number of affidavits. One of the affidavits is effectively an expert’s report. The other affidavits go to the plaintiff’s reputation and the hurt that has been caused by the defamatory comments.

4. The defendant is a young man, now apparently aged 20, and was at the time of the publications one year out of high school. He had completed the Higher School Certificate in 2011 at Orange High School. In addition to him attending that high school his father was a teacher there and occupied the position of head teacher from about the year 2000 in the music and arts department. The defendant’s father was described as a gentle man who had a number of health issues.

5. The plaintiff was also a teacher at the school and was concerned mostly with music. She is now 58 years of age. She is married and has three children. By the time the events in this case occurred she had given many years of devotion to students and to teaching generally. She had established a widespread reputation not only in Orange but through a wide country area regarding her capacity as a teacher, her concern for her students and her devotion to the pursuit of excellence in teaching. This excellence was well known to the then principal of the school (Mrs Angus) who gave oral evidence before me and had been aware of the plaintiff’s reputation before she joined the school as principal.

6. In November 2012 Mrs Angus was retiring. Such was the esteem in which the plaintiff was held that students approached Mrs Angus and asked if part of her retirement function could be devoted to the re-naming of the music centre as the “Mrs Music Centre” in honour of the plaintiff and her history and devotion to her students and classes.

7. I will return briefly to the defendant and in particular his father. His father left the school in 2008 in order to attend to personal issues. As a result of him leaving, the plaintiff, perhaps to some degree reluctantly, took over his position on an acting basis. For some reason it seems that the defendant bears a grudge against the plaintiff apparently based on a belief that she had something to do with his father leaving the school. There is absolutely no evidence to substantiate that belief.

8. However, acting on that belief, on 15 November 2012 through the social mediums of Twitter and Facebook, a number of defamatory comments were posted about the plaintiff. Those comments are the subject of the plaintiff’s action and are set out in the Statement of Claim and also in Exhibits G, H and K.

9. They were brought to the attention of the plaintiff some days later by the principal who felt it appropriate to tell the plaintiff about them, no doubt out of a sense of concern for her and in the knowledge that the spreading of untruthful matters on social media could be very damaging. I note for example that the principal said that she devoted time each week to dealing with Facebook issues that arose in relation to students. It is well known that students can use Facebook for bullying.

10. The defendant was not a student when the publications were made and he cannot rely on any suggestion that he was acting as a pupil who might be viewed as one of a group of students unhappy with a teacher’s performance. The defendant in fact had never been taught by the plaintiff and he had left school a year before.

11. The effect of the publication on the plaintiff was devastating. This was not only her evidence but, as I have said before, there is also affidavit material to that effect and there is the evidence of Mrs Angus. My impression of the plaintiff in the witness box was one of a very honest woman who had been terribly hurt both by the comments in general but perhaps more particularly by the suggestion that she may have been responsible for any harm, ill health or effect of any of her actions on the defendant’s father. As I have said, these allegations have no substance whatsoever.

12. On 24 November 2012 there were further Twitter publications. These are described in paragraph 5 of the Statement of Claim. The plaintiff has said, and I accept, that all of the imputations that are set out in the Statement of Claim are untrue. The devastation felt by the plaintiff is evidenced by the fact that she immediately left on sick leave and is only now returning on a limited basis to work. But for the publications, her evidence was that she would have continued in the manner that she was teaching in 2012 until she reached the age of 65 which is in about seven years time.

13. The plaintiff is obviously entitled to an award of compensatory damages flowing from the established defamatory publications. I have had the benefit of concise submissions on damages from learned counsel for the plaintiff who has set out a number of the principles that I will apply. As he has submitted to me, the general damage to reputation is presumed to be the natural and probable consequence of a defamatory publication. The compensation is intended to vindicate the person’s reputation in the eyes of the general community and compensate the person for the distress and insult felt. There must be a consolation for the personal distress and hurt caused to the plaintiff by the publication as well as an attempt through an award of monetary compensation to achieve as far as possible a reparation and vindication of the plaintiff’s reputation.

14. An award of damages must not be excessive but must signal to the public that the vindication of the plaintiff’s reputation has been attempted so that the public will know that the lies published by the defendant have no truth whatsoever.

15. I have been referred to a number of cases and reminded that the maximum that may be awarded under the legislation is $355,500. Mr Dawson’s written submissions did not state a specific figure, perhaps because of his deference to the sometimes held view of courts that it is not appropriate for counsel to suggest specific figures. I do not take that view and so invited Mr Dawson to make a submission of a specific figure. His response was $100,000 in respect of compensatory damages.

16. Having regard to the principles that I have set out above I think that figure is a little high but I do not think it is very far from the appropriate figure. In my view the award of compensatory damages should be $85,000.

17. There is also a claim for aggravated damages. The entitlement to aggravated damages arises in this case I think because of the conduct of the defendant in the response to the claim. Exhibits J and M contain the relevant correspondence. The plaintiff’s solicitors wrote to the defendant at the end of November 2012. He did not reply. They wrote again on 12 December. He replied about a week later on 20 December. His letter is Exhibit J. In this letter he says:

“All comments referred to by you have been removed from my social media pages.”

18. He carries on a little later:

“I apologise unreservedly to Mrs for any hurt or upset caused to her by statements made on my social media page.”

19. At first sight there is the appearance of an unequivocal apology and withdrawal of the publications. Unfortunately the apparent sincerity of that letter was contradicted by events that later occurred. The most obvious of these events is that in the Defence initially filed to the proceedings a defence of truth was put forward. The defence of truth when it is spurious is particularly hurtful to a person who has been the subject of such unsubstantiated allegations. That defence soon fell away and an Amended Defence asserting qualified privilege was filed. That defence also had no substance and was ultimately struck out. The defendant then seems to have abandoned his interest in the proceedings and has not appeared. I note that I am satisfied that he is aware of the orders made by Judge Olsson and of today’s hearing – I refer to Exhibit A.

20. Having regard then to the matters that I have just outlined, and which in my view justify an award of aggravated damages, I am of the opinion that that award should be in the sum of $20,000.

21. There is one matter that I omitted in relation to the compensatory damages and that is to stress that when defamatory publications are made on social media it is common knowledge that they spread. They are spread easily by the simple manipulation of mobile phones and computers. Their evil lies in the grapevine effect that stems from the use of this type of communication. I have taken that into account in the assessment of damages that I previously made.

22. The orders I make therefore are:

o (2) The defendant is to pay the plaintiff’s costs of the proceedings.

Post number 2 Must be 600 words

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Does Australia need a statutory tort to protect thr public against serious invasions of privacy?

Comment number 1 Must be 200 words

A student post:

Important: you need to make a comment based on other student post, which is below & must be 200 words.

The Australian Law Reform Commission (ALRC) recommended introducing new laws that would give a legal remedy for serious invasions of privacy.

Unfortunately, the federal government has already indicated it opposes such legislation. Stronger protections of privacy in Australia are needed though, and the proposed privacy tort is the best way forward.

In its inquiry on Serious Invasions of Privacy in the Digital Era, the ALRC considered whether Australians should have legal redress if their personal sphere is invaded without their consent.

With its proposal for a statutory cause of action to protect privacy, the ALRC reaffirmed a recommendation from its 2008 landmark report on privacy. The New South Wales Law Reform Commission in 2009 and the Victorian Law Reform Commission in 2010 also made similar calls for enhanced protections.

Despite these repeated calls and the growing community concern over loss of privacy in recent years, successive Australian governments have shown little appetite for improving Australia’s privacy regime.

Australia is now virtually unique in not recognising a right to privacy. In most other common law jurisdictions, courts have developed specific protections against invasions of privacy.

In New Zealand, the UK and, most recently, Canada, judicial developments have been prompted by human rights legislation. These countries’ bill of rights guarantee fundamental freedoms, including the right to freedom of expression and a right to respect for private life. The absence of a federal human rights framework in Australia hampered the development of a common law right to privacy.

The proposed privacy tort

The ALRC report carefully evaluates the various interests that collide in cases of privacy invasions. It proposes federal legislation for a new tort of serious invasion of privacy that would focus on:

1intrusion into seclusion and

2misuse of private information.

The ALRC recommends that the tort should be confined to intentional or reckless invasions of privacy, so that negligent invasions of privacy would not be actionable, and to introduce a requirement that the invasion must be serious.

Most importantly, it is proposed that an action could only succeed if the court was satisfied that the public interest in privacy outweighed any countervailing public interests. This requirement for a balancing exercise would ensure that freedom of speech, freedom of the media, public health and safety and national security would not be disproportionately curtailed.

Should a new tort be enacted?

1.17 The ALRC was asked to design a cause of action, rather than to determine whether it is needed or desirable. This second question was considered and answered affirmatively by three recent law reform inquiries in Australia. It was also the subject of an Issues Paper prepared by the Department of Prime Minister and Cabinet in September 2011. Nevertheless, many stakeholders in this Inquiry commented on the issue.

1.18 The ALRC considers that the question of whether a statutory cause of action for serious invasion of privacy would be beneficial to the Australian community should be assessed on the basis of an understanding of:

▪the existing legal protections for privacy;

▪gaps and deficiencies in that legal protection;

▪the likelihood of the common law developing a cause of action for invasions of privacy in the absence of a statute;

▪the detailed design of the cause of action—its elements, defences and remedies; and

▪whether the cause of action is better designed in statute, or left to be developed by the courts.

1.19 Many stakeholders expressed their support for a statutory cause of action. Only a few told the ALRC that the law did not need to be changed at all, and that there were no gaps in the legal protection of privacy in Australia. Even many of those who opposed a privacy tort did not deny the importance or value of privacy. Rather, they based their opposition to the tort on other grounds. It was said that there was little evidence that privacy is invaded in Australia, and that there are no media practices in Australia such as those exposed in the UK phone hacking scandal involving the now defunct News of the World. It was also said that there are no significant gaps in the law, and a new tort would have an undesirable effect on the media, on other businesses, and on the free flow of information.

1.20 The ALRC is not convinced that there is no evidence of invasions of privacy in Australia. Invasions of privacy by intrusion or misuse of private information are known to occur in a wide variety of circumstances.

1.21 While it may be true that the Australian media operate more appropriately than some of their UK counterparts, it is not necessarily the case that the Australian media never unjustifiably invade people’s privacy. Rather, it may be that where they have done so, and the plaintiff complains, they have settled the plaintiff’s claims to avoid litigation, publicity and the setting of a precedent.

1.22 The fact that courts have not recognised a common law cause of action, as they have in other countries, also does not show that there is no need for a statutory cause of action. It may merely indicate that litigants are reluctant to risk lengthy and costly proceedings and appeals arguing a novel point of law. ALRC consultations with practitioners confirmed this view.

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1.23 Some who opposed the introduction of a new cause of action recognised that there are gaps in the law, but submitted that it would be preferable to fill those gaps in other ways. Other stakeholders who opposed a new privacy tort submitted that it would nevertheless be preferable to ‘shoehorning’ privacy protection into existing actions.

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