A recent defamation decision of the New South Wales Supreme Court¹ highlights the difficulty a plaintiff can face proving the extent of publication of defamatory material on the internet.
Keith Leech sued Green & Gold Energy Pty Ltd (Green & Gold) and Gregory Oran Watson for defamation in the NSW Supreme Court over online posts made on three internet websites.
Green & Gold ran a solar energy company. Mr Watson was associated with the Green & Gold business.
Mr Leech posted concerns in the ‘comments’ section of Green & Gold’s website about what he considered to be the legitimacy of the defendants’ solar energy business. Mr Leech contended that his comments were posted with a view to researching opinions posted by other users as to the suitability of the defendants’ solar energy products.
In response to the comments posted by Mr Leech, Mr Watson posted his own remarks online about Mr Leech in three online chat forums.
Mr Leech sued in relation to the defamatory matter of and concerning him posted by Mr Watson, including remarks posted by Mr Watson on behalf of Green & Gold.
Neither Green & Gold nor Mr Watson appeared at the trial.
Assessment of damages
The Court found that Green & Gold and Mr Watson were liable. It had to assess what damages should be awarded to Mr Leech.
Mr Leech’s evidence was that he read the defamatory statements made about him after undertaking an internet search of both the Green & Gold business name and his own name.
It is noteworthy that Mr Leech did not lead any evidence about requesting:
- the defendants to cease posting defamatory remarks about him or that they remove the defamatory content from the Internet; or
- the ISP to remove the content of concern from the web pages in question.
Justice Fullerton held that although Mr Leech’s actions in posting online criticism of the defendants may have provoked Green & Gold and Mr Watson into publishing defamatory material about Mr Leech, the posts uploaded by Mr Watson were unjustified.
Her Honour awarded Mr Leech $30,000, which included $5,000 for aggravated damages on the basis that the defendants had published the defamatory matter maliciously.
Failure to apologise
The defendants did not provide Mr Leech with an apology. In assessing damages, Justice Fullerton held that the defendants’ failure to apologise to Mr Leech reflected their intention to inflict ongoing harm to him. It was a matter taken into account in awarding aggravated damages award.
While a Court does not have power to order a defendant to provide an apology to a claimant, this case highlights the point that the provision of an apology may be a matter which mitigates the damage, and so can be taken into account in the award of damages.
Circulation and reputation
One factor a Court considers in awarding damages for publication of defamatory matter is the width or extent of publication.
Mr Leech gave evidence that he was aware of at least 20 people who regularly posted comments to the chat room sites using aliases on a regular basis, and a further 20 people who posted comments using aliases less frequently at the time the defamatory comments were uploaded by Mr Watson.
Justice Fullerton noted that although the posted comments were accessible on the internet, Mr Leech could not point to any persuasive evidence as to the actual number of readers or viewers of the websites in order to show there was widespread publication. Her Honour held that the mere fact material was available on the internet did not necessarily mean that circulation of the material had been worldwide.
Whilst the internet has the potential to reach a global audience, there was nothing in the materials Mr Leech tendered that enabled Justice Fullerton to draw any reliable conclusions as to the actual number of people who might have read the defamatory posted comments, or that he had an established reputation with any of those readers which might have been diminished by them reading the defamatory matter.
Another difficultly for Mr Leech was establishing that the 40 'anonymous' users who regularly visited the sites were in fact different people. As Justice Fullerton pointed out, and as discussed in our previous article Exposing Internet Mud Chuckers, the internet facilitates content being uploaded by individuals using “anonymous” usernames or aliases and as such, it is quite possible that the 40 bloggers could in fact be one person, using multiple aliases.
Although a successful claim for defamation requires publication be to just one person, the greater the circulation of publication, the greater the harm to the plaintiff’s reputation, and hence the capacity for damage and the size of the damages that might be awarded.
This case highlights that the Courts will not infer or assume that because defamatory matter is accessible on the internet that it will have been read by a wide audience.
In the context of plaintiff suing in relation to defamatory content uploaded to an internet site, an online blog or social media forum, the width of publication will have to be proved using admissible evidence of real and actual numbers of readers of the offending content.
While the internet has the potential to reach a global audience at the click of a button, widespread publication will not be assumed by the courts. The onus remains on the plaintiff to prove the extent or width of the readership group if maximum damages are to be awarded.
For more information, please contact:
|Nick Stagg||Kara Thornton|
|(08) 9288 6971||(08) 9288 6987|