Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Expands Expression
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In January 2014, the Sydney Morning Herald news outlet published an article on its website that mistakenly identified an Australian high school teacher on allegation of sexual misconducts with students. Same day, the publisher removed the specific references to the teacher. In February 2014, it further published an apology in the Sydney Morning Herald.
Despite of that, the teacher brought a defamation action against Fairfax Media Publications, the owner of the Sydney Morning Herald. A court of first instance ruled in favor of the teacher, finding that the published article contained defamatory statement that she was a sexual predator and that such defamation was serious as the article was made available to readers who went to the school’s website to identify the teacher by using the publication’s specific identifying references.
The New South Wales Court of Appeal upheld the lower court’s decision. It affirmed the finding that a reasonable person could identify the teacher as the individual accused of sexual misconduct and that the amount of damages for defamation was correctly based on the totally of circumstances, particularly based on the fact that the article at issue invited the readers to look into extrinsic evidence, such as the school’s website to ascertain the identity of the teacher accused of sexual impropriety, and its harmful consequences to the teacher’s professional reputation.
On January 31, 2014, the Sydney Morning Herald published an article in which it misidentified a high school teacher with another female teacher in the same school who was actually accused of having sexual misconduct with a number of students. The news outlet stated that the teacher was in her late 20s and taught Drama and English. Yet, the teacher concerned in this case was only one in that school who taught Drama and English.
Later on that same day, the news company removed the specific identifying references to the teacher. On February 13, 2014, it further published an apology.
Subsequently, the teacher brought a defamation lawsuit against Fairfax Media Publications, the parent company of the Sydney Morning Herald. A lower court entered judgment against the company and awarded the teacher $350,000 in damages.
Fairfax Media Publications appealed the decision to the Court of Appeal of New South Wales.
Fairfax Media Publications raised seven grounds on appeal. First, it contended that the lower court should not have found the material conveyed the teacher as a sexual predator. The Court rejected this argument, stating that a reasonable person could infer this information from the article in question.
Second, it argued that the lower court erred in finding that there was a dramatic spike in the activity of the school’s website after the article was published. The Court disagreed, finding that this inference was reasonable based on the number of visitors to the site.
Third, it argued that the lower court impermissibly imposed unreasonable amount of damages by allowing charges to be based only on the fact that it was reasonably foreseeable the teacher could be identified as the other female teacher accused of sexual misconduct. The Court enunciated three principles explained by current case law: (1) If a publication is not defamatory on its face, extrinsic evidence cannot be used to make the publication defamatory; (2) If a publication is facially defamatory but it is ambiguous as to whom the publication is referring to, subsequent publications can be utilized for clarification; (3) If the plaintiff is not named in the publication then subsequent publications can be used for clarification. [para. 113] Based on these principles, the Court found that the lower court was correct in finding that the article invited the readers to look to extrinsic evidence, such as the school’s website to ascertain the identity of the teacher accused of sexual impropriety.
The publisher also argued the number of people who actually thought the teacher was in fact the accused individual was limited. The Court again rejected this argument, finding that some of the people must have made this assumption.
The publisher further contended that the lower court erred in not taking into account any post-publication evidence indicating that the teacher’s reputation was not actually harmed. The Court found that this evidence was admitted by the lower court and was utilized in making its findings.
Finally, the company the challenged the amount of damages awarded in the case, arguing that the lower court overstated the seriousness of the defamation. The Court noted that under the Defamation Act, damages are discretionary. It found no basis for reducing the damages amount in this case where the defamatory statements were very harmful to teacher’s reputation.
Accordingly, the New South Wales Court of Appeal upheld the decision of the lower court.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expands expression by protecting the privacy rights of the individual defamed by the news publisher. Although the press is limited in this instance, it is because they were falsely reporting and therefore the article was in error.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
The decision notes that an award of damages for defamation is regarded as a discretionary judgment.
ss 18, 34, 35; Pt 3; Pt 4
Case significance refers to how influential the case is and how its significance changes over time.
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