The Federal Court of Australia has awarded damages of $875,000 (including aggravated damages) to a Member of the House of Representatives, her husband and a not-for-profit charity organisation she founded arising out of “delusional” and “deranged” publications made via Facebook.
The appropriate award of damages where there are multiple publications, multiple applicants and where reasonable people would dismiss the publications as deranged and lacking in credibility; and whether it was appropriate to award aggravated damages.
On 18 June 2020 the court entered default judgment against the respondent in an action for defamation arising out of Facebook posts the respondent (who was based in New Zealand) made concerning the applicants. Having given judgment in favour of the applicants, the court heard evidence and submissions on the assessment of damages. The respondent did not seek to participate in the proceeding at any stage.
The decision at trial
In assessing the appropriate award of general damages, the court had regard to the applicants’ reputation and standing in the community, the seriousness and extent of the publications and their impact on the applicants and their reputation, and whether there was any aggravating conduct on the respondent’s part. The applicants did not seek damages for economic loss.
The court found that the first and second applicants were fine upstanding members of the community, who had dedicated themselves to working for the benefit of others and who were widely viewed as having integrity, decency and community spirit. The court noted the significant charitable work of the third applicant, a not-for-profit charitable organisation the first applicant founded.
The court found that the respondent’s publications (which branded the applicants as participants in a secretive criminal network involving the sexual abuse of children) were false and untrue, disgraceful and inexplicable, wholly indefensible and among the most serious kind of defamatory imputations that can be levelled against an individual or a charity. The publications (which attracted over 8,000 views, shares, comments or reactions on Facebook) were widely published and likely to have spread “along the grapevine” into the local community where the applicants were based.
The defamatory publications harmed the applicants’ reputations, and caused significant personal distress and hurt for the first and second applicants (it was not appropriate to assess the subjective impact of the publications on the third applicant as it is not an individual).
The court found that an award of aggravated damages was appropriate in circumstances where the publications were unjustifiable, repetitive, vicious and mocking and the respondent had been obsessive and defiant in her actions. Accordingly, the statutory cap for awards of damages for non-economic loss (currently $421,000) did not apply (the court may make an award of damages for non-economic loss exceeding this amount only if aggravated damages apply). The court also confirmed previous authority that, had the cap applied, it would have applied severally to each applicant (such that each applicant’s award of damages would be subject to a separate cap).
The court found that it was appropriate to make a single award of damages to each applicant despite the fact there were multiple publications.
The court awarded general damages (including aggravated damages) of $350,000 to the first applicant, $225,000 to the second applicant (both the first and second applicants were individuals) and $300,000 to the third applicant (the not-for-profit charity).
The court noted that its primary consideration was the need to vindicate the applicants’ reputations by “nailing the lie”, and convincing bystanders of the baselessness of the respondent’s terrible charges. This was despite the fact that it was reasonably unlikely the publications would cause any but the most suggestible individuals to think less of the applicants and that most reasonable people would dismiss the publications as delusional, deranged and lacking in credibility.
Implications for you
Although an unusual set of circumstances (due to the nature of the imputations and the respondent’s conduct generally), this decision confirms the increasing willingness of courts across Australia to make substantial awards of general damages (including aggravated damages) for defamation. This appears to be so even where the publication is so outlandish (albeit serious) that no reasonable person would believe it.
It also highlights the potential consequences for authors of defamatory publications on social media even where, again, reasonable people may not believe those publications. Particularly important is the extent to which those publications permeate society and the recognised impact of the “grapevine effect”, both of which are factors that will be considered in the assessment of damages.