Defamation / Reputation
Afanasyev v. Zlotnikov
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The Supreme Court of New South Wales awarded Chris Gayle, a famous cricket player, Aust.$300,000 in damages to be paid jointly by three newspapers for publishing defamatory articles that Gayle had exposed himself to a female masseuse in a locker room. The proceedings were heard with a jury which found that the defendants defenses of truth and qualified privilege failed due to inconsistencies in witness testimony and evidence of malice in the reporting.
During the 2015 Cricket World Cup, Leanne Russell, a team masseuse, claimed that Chris Gayle inappropriately exposed himself and propositioned her. She approached a newspaper owned by Fairfax Media with the story after Chris Gayle controversially told a female reporter, “Don’t blush, baby.” Fairfax Media ran the story with various other media outlets picking up the story. Five separate articles published by three newspapers, in print and electronic editions, over a period of five days totaled 28 publications related to the alleged incident. Chris Gayle sued Fairfax Media; The Age; and Federal Capital Press for defamation and a jury trial was held in October 2017. The articles were published shortly after an unrelated second scandal involving Gayle where he made inappropriate remarks to a female journalist, Ms. Mel McLaughlin, during an interview which generated substantial media coverage and public outrage and for which Gayle was fined $10,000.
McCallum J delivered the judgment of the Supreme Court of New South Wales.
The primary task for the Judge was primarily to assess damages based on the verdict of the jury trial, but also to elaborate on rulings made during the trial.
In response to the defamation allegations, the three defendant media organizations contended that while the articles were defamatory in nature, they pleaded a defense of truth and statutory qualified privilege under ss 25 and 30 of the Defamation Act 2005 (NSW).
Gayle sought general and aggravated damages for harm to his business reputation but not for economic loss.
The Jury found that each of the defenses failed:
“As to the defence of truth, the jury found that the newspapers had not established that any of the defamatory meanings relied upon by Mr Gayle was true. As to the defence of qualified privilege, the jury found that the defendants were actuated by malice in publishing the matters complained of. That finding operates to defeat the defence: s 30(4) of the Defamation Act.” [para.4]
Over the course of the trial, Leanne Russell, who originally remained anonymous testified as to the incident, whereas Chris Gayle adamantly denied it ever happening. A teammate who was apparently in the room at the time of the incident testified on behalf of Chris Gayle. The jury found that there were inconsistencies in Russell’s testimony and that Fairfax Media did not prove that there was substantial evidence that the statements were true.
In order for Fairfax Media and the other defendants to have a qualified privilege that would protect the media outlets from charges, they had to satisfy all requirements as laid out in the 2005 Defamation Act. First, Fairfax Media had to show that that their conduct was reasonable under the circumstances. In order to determine if the conduct was reasonable under the circumstances, the Court may look to various factors including if the information is in the public interest, the seriousness of the charge, the integrity of the source, and any other information in which the Court deems relevant. However, a defendant waives their qualified privilege if they act with malice and in this case, the jury found that Fairfax Media acted with malice. The Judge accordingly relied on that finding to determine that the defendants had not acted reasonably and thus rejected their privilege.
The Judge rejected Gayle’s request for an injunction to halt further reporting on the alleged incident. Citing Carolan v Fairfax Media Publications Pty Ltd (No 7)  NSWSC 351, the Judge found “[t]he public interest is offended by any court-imposed restraint that is not reasonably necessary in the circumstances,” and can only be justified where there is a serious “threat or risk of a repeat of the publication of the defamatory matter successfully sued on in the proceedings.” In the present case, the Judge concluded that “the defendants removed the matters complained of promptly after the jury gave its verdict. That is a strong factor indicating that an injunction is not necessary.”
In assessing damages, the Judge disregarded the issue of malice on the ground that there was no evidence that it had increased the harm suffered. The Court also did not find any basis to award aggravated damages. The Judge awarded Chris Gayle A$300,000 in damages to be paid jointly or “holistically” as requested by the three defendants to avoid double or triple compensation. (The statutory maximum damage was $398,500)
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
From what is currently reported on the matter, the most concerning aspect of the case may regard confidentiality of sources. Originally it was reported that the woman who came forward with the allegations against Chris Gayle was anonymous. However, that woman was later named and testified at trial. It is unclear rather she came forward willingly or was forced to, but what remains is the threat of exposing confidential witnesses to the freedom of information. If individuals who wish to remain anonymous are exposed, such individuals may stop coming forward, and, therefore, information that may be of great interest to the public may be lost.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Due to the unavailability of the decision, it is assumed that Court used and the jury was instructed to use the 2005 Defamation Act.
Case significance refers to how influential the case is and how its significance changes over time.
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