Defamation / Reputation
Hlynsdottir v. Iceland (no. 2)
Closed Contracts Expression
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The Supreme Court of Queensland ruled the publication of ten separate posts on Facebook about Karting Australia CEO Kelvin O’Reilly were defamatory. The publisher of the defamatory matter had described the CEO as a “bully” and a “crook” and accused him of “incompetence,” “corruption,” “sexual harassment” and bringing “disrepute” to Karting Australia. The Court observed that the posts were injurious to the reputation of the CEO as there was no truth in, nor basis for, the alleged imputations. Considering the injury to O’Reilly’s personal and business reputation, as well as his personal distress owing to the “grapevine” effect, i.e. rapid and widespread dissemination of information, the Court awarded damages. The Court also awarded “aggravated damages” because of the lack of good faith demonstrated by the publisher before and during trial. Thus, an aggregate amount of $250,000 Australian Dollars with interest on damages was awarded to the Karting Australia CEO and an injunction order was passed ordering the publisher to remove the posts and to restrain any future publication of the defamatory material.
The plaintiff, Mr. Kelvin O’ Reilly is the CEO of a newly formed entity, Australian Karting Association Limited which is also known as Karting Australia. He has held this position since 1st September 2013.
The defendant, Mr. Peter Edgar is a retired coach of kart-racers and the publisher of ten posts against Mr. O’Reilly on Facebook. These posts were published by Mr. Edgar between 23rd November 2015 and 8th September 2018.
The first two posts were on a public Facebook page titled “Go-Kart Kid.” The other eight posts were on a different Facebook page titled “Federation of Australian Racing Karters’ Union” which was administered by Mr. Edgar himself. [para. 4, p. 5]
The proceedings were commenced by Mr. O’Reilly in the Supreme Court of New South Wales by filing a complaint against Mr. Edgar on 12th October 2016 for defamation. Later, the proceedings were transferred to Queensland. [para. 23, p. 8]
The ten posts published on Facebook made the following imputations against Mr. O’Reilly.
The first post which was published on 17th January 2016 conveyed that Mr. O’ Reilly was a “bully” who ruled “through fear and intimidation” over Karting Australia.
The second post published on 23rd November 2015 alleged that Mr. O’ Reilly through ignorance and intimidation has brought disrepute to Karting Australia.
The third post published on 22nd May 2016 stated that Mr. O’Reilly was “incompetent” and responsible for “destroying” other motor racing competitions.
The fourth post published on 23rd May 2016 stated that Mr. O’ Reilly intended to corrupt the election process of Karting Australia and ensure that his friend Mr. Doohan was elected.
The fifth post published on 3rd September 2016 alleged that Mr. O’Reilly has secretly and corruptly accepted a well-remunerated role within V8 Supercars.
The sixth post published on 26th November 2016 alleged that Mr. O’ Reilly was dismissed from directorship of Burleigh AFL Club on grounds of “sexual harassment of a female bar staff member.”
The seventh post, published on 26th November 2016 stated that Mr. O’Reilly was incompetent and has been dismissed from his previous positions in motorsports.
The eighth post, published on 4th May 2017, stated that Mr. O’Reilly was corrupt as he personally pocketed the sponsorship revenue.
The ninth post, published on 12th May 2017 stated that Mr. O’Reilly received kickbacks for his role as CEO of Karting Australia.
The tenth post published on 8th September 2018, reinstated each of the allegations mentioned in the previous posts.
Mr. Edgar argued that these statements against Mr. O’Reilly were true because they were “reports on facts as they appear.” [para. 162, p. 27]
Honourable Mr. Justice Bradley delivered the opinion of the Single Judge Court.
The central issue for determination was whether Mr. Edgar’s posts against Mr. O’Reilly were defamatory or whether the defense of truth could be taken. The Court first noted that the Defamation Act 2005 (Act) was enacted to properly balance freedom of expression with the protection of reputation and that the Act provided remedies for harmed individuals as well as defences to publishers “that might privilege, justify or excuse the publication.” [para. 1, p. 5] The Court further observed that the author of the posts was immaterial, as the Act only concerns the publication of defamatory content. In the present case, the defamatory content was not just published online but was also downloadable to individual devices which according to Dow Jones and Co Inc v Gutnick (2002) 210 CLR 575 puts the content in a “comprehensible form” that can damage reputations.
The Court had to determine whether an “ordinary reasonable reader,” based on the “natural and ordinary,” meaning of the comments would think less of Mr. O’Reilly. The issue was not what Mr. Edgar intended to convey or even the literal meaning of the words, but the “impression” that the average reader would have of Mr. O’Reilly based on any implied, inferred or indirect meanings in the comments.
Mr. O’Reilly stressed that the posts were “wanton lies,” “scandalous” and “frankly just lies” which made him feel absolutely “helpless and outraged.” [p. 18]
Mr. Edgar raised the defense of truth by stating that what he did on the Facebook page were “reports on facts as they appear”. He also included a plea that Mr. O’Reilly had not suffered any harm or loss in the process.
The Court observed on the basis of “balance of probabilities” that Mr. Edgar had failed to discharge the onus of proving that the alleged imputations were true as there was no effort on his part to verify the truth or falsity of the statements and there was more “fantasy” than “facts” in his submissions before the court. Further, four associates of Mr. O’Reilly provided evidence of his professional integrity, contrary to Mr. Edgar’s allegations.
In reference to Mr. Edgar’s plea of inconsequential and trivial harm, the Court examined Section 33 of the Defamation Act by referring to the case of Morosi v. Mirror Newspaper Ltd.,  2 NSWLR 749. The Court then observed that a party taking this defense must identify and persuade the Court that the plaintiff was unlikely to suffer any harm under given circumstances. Since Mr. Edgar’s submissions did not identify any circumstances where such a harm was not likely, this defense could not be taken.
After determining that Mr. Edgar’s posts were defamatory, the Court proceeded towards determining damages for defamation. Relying on the case of Carson v. John Fairfax & Sons Ltd., (1993) 178 CLR 44, the Court observed that general damages are awarded for three purposes i.e. personal distress, embarrassment and vindication of the reputation of the person defamed. The court observed, with respect to the first two purposes that the imputations have done great damage to the reputation of Mr. O’Reilly. The targeted nature of the posts to the audience of the Facebook groups, which were largely made up of club members as well as representatives of State and Territory bodies involved with Karting, made the likelihood of professional repercussions to be quite strong. With respect to the third purpose i.e. vindication of the reputation, the Court referred to the case of Rogers v. Nationwide News Pty. Ltd. (2003) 216 CLR 327 and observed that vindication “looks to the attitude of others” thus the award of damages must be sufficient to convince a bystander of the “baselessness of the charge.” [para. 209, p. 34]
Relying on the observations made in the case of Triggell v. Pheeney, (1951) 82 CLR 497, the court observed that in cases where a defendant acts in an unjustified manner that demonstrates a lack of good faith, aggravated damages may be awarded. Mr. Edgar’s act of not verifying the allegations before publishing, him posting a “mock apology” on the Facebook page, even after receiving a “concerns notice,” and his callous approach during trial, demonstrated a lack of good faith. The Court found that Mr. Edgar’s total lack of concern for the truth or falsity of the comments could only mean that he intended to harm Mr. O’Reilly’s reputation. Thus, the Court passed an order to award aggravated damages to Mr. O’Reilly.
With regard to the quantification of the damages in case of defamation, the Court observed that the damages cannot be calculated by a “mathematical formula” and therefore it reviewed seven similar cases related to defamatory social media posts. Further, the circumstances of the present case warranted that an account of “aggregate harm” suffered by Mr. O’Reilly be taken into consideration. Considering the damage to the reputation and feelings of Mr. O’Reilly, and the egregious conduct of Mr. Edgar’s, the statutory cap on damages was not applicable and therefore the Court awarded damage of $250,000 AUD.
Further, considering the grave nature of publications, the Court ordered Mr. Edgar to pay interest on the damage from the date on which O’Reilly’s cause of action arose at the rate of 3 percent per annum on the total damages from 23rd May 2016. [p. 37]
With regards to Mr. O’Reilly’s request for an injunction, the Court, relied on the case of Carolan v. John Fairfax Media Publications Pty. Ltd.,  NSWSC 351 and observed that an order for injunction should only be made where the Court is satisfied that it is “reasonably necessary” to do so. Since, Mr. Edgar maintained that the posts were justified and refused to apologise or remove the posts or offer any such assurance during the trial process, the Court was led to conclude that an injunction order had to be passed to remove the posts as well as restrain from republication.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Supreme Court of Queensland, Australia, while striking a balance between protection of personal reputation and freedom of speech, determined in the present case that the defense of truth was not valid as the defendant did not verify the correctness or falsity of allegations against the Plaintiff before publishing it on Facebook. The court awarded unusually damages to the plaintiff for the injury to reputation of the Plaintiff along with aggravated damages due to defendant’s unjustified actions and conduct before and during trial. An injunction order for removal of these defamatory posts and an order restraining its further publication were also passed.
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