This matter deals with a preliminary determination as to whether an allegedly defamatory Facebook comment caused, or was likely to cause, serious harm to the plaintiff’s reputation. The New South Wales District Court determined that it did not, such that the claim was struck out and dismissed.
In issue
- Recent reforms to the uniform defamation laws in Australia now require that a plaintiff prove that the publication of defamatory matter has caused, or is likely to cause, serious harm to their reputation. In this matter, on application by the parties, the New South Wales District Court determined the question of serious harm as a preliminary issue, pursuant to section 10(4) of the Defamation Act 2005 (NSW), with a similar legislative provision in all Australian jurisdictions, except for the Northern Territory and Western Australia.
The background
The plaintiff, the Mayor of Liverpool City Council Ned Mannoun (Mannoun), brought defamation proceedings against the defendant, Peter Ristevski (Ristevski), a former political rival of the plaintiff and a former Councillor, following a comment that Ristevski left on a Facebook post suggesting that Mannoun had defrauded a charity. The defamatory matter complained of was the following comment that Ristevski left on a public Facebook page entitled 'Liverpool Council Shenanigans' (Shenanigans):
'Nader Mannoun is a crim. He fraudulently inflated his financials to sell his business to a charity for $1m. That charity has now lost $1m as the business was not worth that much. I dare the grub to sue me for defamation so it can all come out in the public forum.'
It was not in issue that the matter complained of carried an imputation that Mannoun was a criminal, in that he allegedly fraudulently altered the financial records of a business causing it to be purchased by a charity at an overvalue. Of relevance to the determination, was the purpose of Shenanigans, noting that the Facebook page existed for members of the public to post their thoughts about Liverpool Council, and those who held office in it, including Mannoun. Gibbons DCJ noted that those who post in Shenanigans and/or follow the group 'do not have anything nice to say…' about those parties.
The decision at trial
The court held that Mannoun failed to prove that the publication of the Facebook comment caused, or was likely to have caused, serious harm to Mannoun’s reputation, either at the time of publication or prospectively in the future. Her Honour ordered that the claim be struck out and dismissed, noting that the determination of serious harm is a final, not interlocutory, matter. Mannoun was ordered to pay Ristevski’s costs.
In making her determination, Gibson DCJ considered the relatively small body of case law that has been developed in Australia since the implementation of the reforms to the uniform defamation laws (acknowledging that there is a much larger body of case law available in the United Kingdom, noting that the serious harm reform is largely adapted from the Defamation Act 2013 (UK)). In particular, Her Honour considered Applegarth J’s judgment in Peros v Nationwide News Pty Ltd (No 3), in which His Honour comprehensively reviewed and analysed the relevant principles of law as to the determination of serious harm.
Her Honour’s determination was based on the following factors:
- The extent of publication: The court held that the comment was published to a handful of site followers and readers and those few who could be identified, clearly already had a low opinion of Mannoun’s conduct generally. The publication remained on Facebook from November 2022 until shortly before trial, September 2024 but there was no evidence that 'hundreds' of persons, or even tens, had accessed the Shenanigans page in that timeframe. Therefore, Her Honour concluded that any publication would have been of very brief duration.
- The duration and severity of the harm: Mannoun’s evidence in this respect, and that of his two witnesses, lacked detail as to the extent of publication. Ristevski’s evidence established that there were readers of the material, all of whom already despised Mannoun. Mannoun’s case then relied on the likelihood that it had been read by hundreds of people (who otherwise could not be identified) by virtue of its publication on the internet, and the likelihood of grapevine republication (that is, that the defamatory matter is repeated in a grapevine-like effect). After consideration of this evidence, Her Honour held that it was not sufficient proof of duration and severity to merely claim that the publication had been uploaded onto the internet, even if that internet page was frequently accessed.
- The credibility of the plaintiff and his witnesses: Her Honour determined that even if she were to accept the evidence of Mannoun and his witnesses uncritically, the quality of their evidence was poor. Her Honour also determined that Mannoun’s reputation with the people who followed or read the Shenanigans page sufficiently closely to locate Ristevski’s comment, would already have been low. Accordingly, Mannoun was left with an inference case that one or more persons who knew him (and held a good opinion of him), read Ristevki’s comment or heard about it on the grapevine, resulting in harm to Mannoun’s reputation such as to warrant the adjective of 'serious'.
- Inference: Her Honour then had to consider the impact of evidence that was largely inferential, and accordingly, the degree to which serious harm findings may arise in those circumstances. In this matter, Her Honour was asked to draw the inference that the matter complained of was 'likely read by hundreds of people', including a segment of readers who were not followers of the Shenanigans page. Her Honour declined to draw such an inference on the evidence provided.
- Harm: This factor involved consideration as to what amounts to 'harm' and the period over which the harm took place, with the onus on Mannoun to establish that he suffered serious harm. The evidence in this matter as to the duration of the serious harm was limited to a few weeks, at most. Her Honour, applying the approach taken in the matter of Banks v Cadwalladr [2023] 3 WLR 167 determined that harm to reputation for such a short period would require more compelling evidence than what had been provided in this matter.
- Specificity and seriousness of the imputations: Counsel for Mannoun relied on the serious nature of the imputation conveyed by the defamatory matter, as a factor to prove the serious harm suffered by the alleged defamation. Her Honour considered that the serious nature of the imputation was not enough to establish serious harm because there must still be identification or evidence of the harm and its causation.
- Measuring the harm: Counsel for Mannoun did not establish whether the serious harm was in the past, the future, or both, but rather generally submitted that Mannoun would satisfy the element of serious harm by virtue of the tendency of the words to cause harm, the actual impact of the words demonstrated by Mannoun and one of his witnesses, and the inference that the publication was more widely circulated. Her Honour determined that 'Any measurement of the harm asserted to have occurred her [sic], in terms of duration or severity, would be insufficient to support any evidence of harm, let alone serious harm.'
- Causation: The court noted that Mannoun not only needed to prove serious harm to his reputation, but also that there was a causal connection between the publication of the defamatory matter and the actual or likely serious harm to Mannoun’s reputation. Her Honour found that Mannoun’s case was largely inferential, but as noted above, the components of an inferential case had not been evidenced and nor had the causation link to damage been established.
Implications for you
As pointed out by Gibson DCJ in her consideration of this matter, the introduction of the statutory element of serious harm was introduced in most Australian jurisdictions at the same time that the defence of triviality was abolished. Arguably, the purpose of such reform is for trivial or marginal defamation claims to be determined at the outset, rather than after significant costs and court resources have been incurred in their determination.
Given the recency of the introduction of the reforms to the uniform defamation laws in Australia, and the uniformity (and as such, widespread applicability) of those laws, any case addressing aspects of that legislation is particularly helpful and critical to understanding how the courts might apply the legislation. The determination in this matter, and the current body of case law dealing with the element of serious harm in Australia, confirms that the courts’ interpretation of this section of the Defamation Act requires significant proof of actual harm such that a judge can be satisfied that harm was 'serious'.
The introduction of the element of serious harm is a significant additional step for plaintiffs in proving defamation claims, noting that even if the published material can be established to be defamatory, it must also be proven to have caused 'serious' harm to reputation. This also provides a helpful way for defendants to preliminarily dismiss trivial or marginal defamation claims.
