Hager, Vaughan --- "Free Speech May Be Another Person's Slander: What Is Serious Harm to Reputation?" [2023] PrecedentAULA 44; (2023) 177 Precedent 26

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Free speech may be another person's slander:

What is serious harm to reputation?

By Vaughan Hager

Writing 110 years ago, TS Eliot observed:

‘A spirit of excessive tolerance is to be deprecated ... the sound tree will put forth new leaves, and the dry tree should be put to the axe.’

He was writing about morality and how it changes over time by the testing and acceptance of boundaries.^[1]

Advising clients in defamation matters is a complex and nuanced aspect of modern legal practice that follows the steps of Eliot (and others). While it may be a general principle that every person has the right to freedom of expression, it is critical to ensure that this right is balanced with the right of others to protect their reputation. This balance of rights is especially relevant today because of the pace of expansion and proliferation of electronic media, which brings many different voices and viewpoints into public discussion. Anyone can be a publisher of content. Australia has no specific constitutional right to freedom of speech, but voices inevitably clash, and a person may easily overstep, infringe upon another person's reputation, and find themselves before a court facing a defamation suit.

SERIOUS HARM

In this article, I examine the ‘serious harm’ element of the defamation tort in Australia, setting out how the law has treated the question of serious harm and discussing factors that have been relevant to determining whether serious harm has been caused to a person because of a publication.

HISTORY

Before the Reformation in the sixteenth century, defamation was wrong only spiritually, and the ecclesiastical courts dealt with such cases. At that time, defamation was a distinct type of wrong because defamatory words were deemed a ‘sin’ if they implied a spiritual or moral offence. Defamation was actionable only in the ecclesiastical courts, where the punishment involved public recantation, penance, and sometimes public reconciliation.

Defamation sits in an unusual place in the law, concerning the regulation of civility judged by the standards of the time. Before 2005, the law divided defamation into two discrete kinds and causes of action: libel and slander. Something defamatory printed in a newspaper, book or other permanent form was libel, but the same, if spoken, was slander. It should be noted that under the Broadcasting Services Act 1992 (Cth), the publication of defamatory matter over radio or television is deemed to be permanent.

THE DEFAMATION ACT 2005 (NSW)

The Defamation Act 2005 (NSW) (the principal Act) abolished the distinction between slander and libel, and the publication of defamatory material, whether spoken or in writing, became equally actionable under the one umbrella of defamation.

THE MODEL DEFAMATION PROVISIONS

On 1 January 2006, uniform defamation laws came into effect in Australia as each state and territory enacted legislation modelled on the principal Act regarding time limitation, the elements of defamation, the conduct of proceedings and the quantum of damages that could be awarded as compensation. The principal Act is the source of what is now termed the ‘Model Defamation Provisions’, and all the legislation is state and territory based because it does not fall within the constitutional power of the Commonwealth.

WHAT HAS CHANGED?

The most significant change in centuries to the much-abused law of defamation was pioneered in New South Wales by the Defamation Amendment Act 2020 No 16 (NSW), which amended the principal Act by introducing s10A, which came into force on 1 July 2021 and has been since adopted by all states and territories except Western Australia and the Northern Territory. The states and territories that adopted the model defamation provisions codified much of the common law but did not exclude it. Accordingly, the common law continues to evolve around the model defamation provisions, and practitioners need to look at the law of the particular state where they intend to issue proceedings because minor variations to the law and practice emerge across the country. The principal Act (as amended and adopted) specifies the critical elements of a defamation claim, including the elements of publication and identification. For a plaintiff to succeed, they must prove that a defamatory statement was made to a third party, that it referred to them expressly, and that it caused them serious harm or damage to their reputation. This harm may include loss of employment opportunities, personal distress, and business or professional reputation damage. It is outside the scope of this article to consider them, but several other defences are available. These include truth, honest opinion, qualified privilege and triviality.

SECTION 10A

Serious harm is a question of fact. Section 10A(1) provides:

'It is an element (the “serious harm element”) of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person.’

Under s10A(5), a party may apply for the serious harm element to be determined before trial.

SOME OF THE CASES SO FAR

Judicial consideration of s10A has been swift, and there are now numerous decisions of superior courts to look to for guidance on the provision. The first decision to consider s10A(1) was Newman v Whittington^[2] (Newman), in which Justice Sackar noted that the Australian provision is the same in all material respects as the UK equivalent. Jasmin Newman had issued proceedings against Adam Whittington regarding 27 defamatory publications on Facebook. Some of the defendant's publications were made after 1 July 2021, when the serious harm test became operative. Thus, the plaintiff needed to prove that some publications caused or were likely to cause serious harm.

Justice Sackar referred to the leading UK decision in Lachaux v Independent Print Ltd^[3] (Lachaux) and held that:

1. serious harm is to be determined by facts about the publication's impact; and

2. the plaintiff must prove, on the balance of probabilities, that the harm caused by the defamatory publication was or will be serious.^[4]

In Lachaux, the UK Supreme Court had considered the scale of the defamatory publication, the gravity of the statements made in the publications and the fact that the words had come to the attention of at least one identifiable person in the UK whom the plaintiff knew and were likely to come to the attention of others. In Newman, by way of obiter, Justice Sackar observed that serious harm would be determined before trial as a preliminary matter unless exceptional circumstances warranted otherwise, including the cost implications of a split hearing and whether determining serious harm is linked to other issues that are the subject of the trial of the proceeding. The Court considered that serious harm might be inferred where a statement has a strong defamatory imputation and has been shared with a wide audience. The absence of action on the part of the plaintiff was also held to be highly relevant. Specifically, the serious harm threshold was not met ipso facto when the plaintiff took no action to obtain removal of the online article complained of for a year after she learned of its publication.

In Newman, his Honour did not consider that the pleadings sufficiently articulated how the plaintiff suffered 'serious harm' and struck them out. He granted the plaintiff leave to amend and replead the relevant paragraphs. Ultimately the plaintiff failed to pass the test by pleading matters properly for consideration as serious harm by the NSW Supreme Court. However, the case did not call for the application of all the relevant principles of establishing serious harm in the final factual sense because the plaintiff's case was only conducted on the pleadings, with no evidence of the actual impact of the publication on her.

Martin v Najem^[5] also considered the serious harm element, and this case proceeded to trial. The plaintiff, Isaac Martin, was a social media food blogger with an audience of 210,000 followers on Instagram, around 40,000 on Tik Tok and 10,000 on Facebook. The plaintiff alleged he built a large social media following and reputation as an ‘influencer’ known as ‘Sir Eats-A-Lot.’ The defendant, Fouad Najem, was also a food blogger and 'influencer' who had also built up a large following on social media. On 22 April 2022, the plaintiff received messages from people he knew informing him that the defendant had published a video about him on Instagram. One of the plaintiff's followers gave evidence that he 'instantly recognised that the defendant was referring to the plaintiff in the video and heard the defendant call the plaintiff a paedophile and a racist'. The following day, the plaintiff became aware of a second video the defendant posted on Instagram. In the second video, the defendant repeated the imputation that the plaintiff was a paedophile by calling him a 'pedo dog'.

Her Honour Judge Gibson of the District Court of NSW held that '[s]erious harm requires fact-rich proof of harm which is actually or likely to be serious, rather than inferences of serious harm'.^[6] The Court noted the following factors, which were given weight when considering the seriousness of the publications complained of:

1. The plaintiff was threatened with severe physical and professional harm.

2. The nature of the allegations was extreme.

3. The manner of the publication in which the defendant threatened harm to the plaintiff and called on others to help him.

4. The scope of the publication was wide.

Her Honour noted:

'There are few more hated criminals in Australia than paedophiles. They are not even safe in gaol. To call a person a paedophile is at or near the top of the list of serious allegations. Allegations of being a racist are repugnant, but not in the same class ...the defendant published the matters complained of on both his Instagram accounts. Social media accounts are not just seen by their followers; they may appear on feeds based on AI analysis of interested parties, or come up on a search.'^[7]

The Court also heard evidence from the plaintiff that he continued to receive threats. He gave evidence that he was and continues to be anxious about his personal safety and has refused jobs and visits to certain areas because of fears of attack, not only upon himself but also on his wife and children. On the day of the trial, the defendant did not attend or have any legal representation. The trial proceeded without the defendant or any evidence from the defendant concerning the alleged imputations. The Court ordered judgment for the plaintiff for $300,000 and for the defendant to pay the plaintiff's legal costs. Her Honour commented in her decision:

'The fact that this all came out of the blue – the plaintiff has never even met the defendant – makes it all the more frightening.'^[8]

In Rader v Haines,^[9] the NSW Court of Appeal found that a publication viewed only by a claimant's parents did not cause serious harm to the claimant's reputation in circumstances where the publication did not damage the claimant's relationship with his parents. The Court opined that 'a grave allegation may not occasion serious harm if the audience is small or do not believe it’.^[10]

CONCLUSION

What has emerged from the cases decided so far in Australia is a self-contained question of context and its role in determining serious harm. The courts' decisions have demanded that the plaintiff indicate the context in which the defamatory material was published or communicated and plead and particularise the material facts and evidence to be adduced to prove serious harm. The serious harm element of the defamation tort is necessary to ensure that rights are correctly balanced. In the interests of justice, serious harm should be dealt with as a preliminary point or a separate question at trial. This will encourage properly pleaded defamation claims and deter the claims of the thin-skinned. Serious harm is a concept rooted in the common law of Australia that has its long lineage drawn from centuries of legal reasoning and law made abroad. It is now codified. While there are still many challenges to come over this provision, what is certain is that every determination has its own context to be considered. And, on a case-by-case basis, the courts will continue, as always, to strike that delicate balance between an individual's right to say what they wish and the right of others to protect their reputation from unjustified attack.

Vaughan Hager is a Melbourne-based lawyer specialising in commercial litigation and, sometimes, defamation. Vaughan has acted for and advised companies, judiciary members, and the public about protecting their reputations and related issues. He is the principal of his own firm, Hager & Co., having established the practice in 2022 after several years with large, mid-tier and boutique firms.

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^[1] After Strange Gods: A Primer of Modern Heresy, Faber and Faber Limited, London, 1934.

^[2] [2022] NSWSC 249 (Newman).

^[3] [2019] UKSC 27 (Lachaux).

^[4] Newman, above note 2, [69].

^[5] [2022] NSWDC 479 (Martin).

^[6] Ibid [70].

^[7] Ibid [71].

^[8] Ibid [76].

^[9] [2022] NSWCA 198 (Rader).

^[10] Ibid [24].