Simpsons Solicitors

Rebel with a cause

September 20th 2017

The recent case in which Rebel Wilson was awarded $4.5 million as a result of a series of defamatory articles by Woman’s Day has garnered a lot of attention in the media. Large dollar sums in court cases involving celebrities have that effect, but what are some of the legal issues and how might the decision affect gossip magazines generally? And will the decision have any effect beyond gossip magazines, for less scandal-mongering publishers?

For a start, it’s worth noting that the case didn’t just involve one article in hardcopy – it involved both an article in the print edition of Woman’s Day and a further seven articles online, including on the websites of related publications such as Women’s Weekly, OK Magazine and New Weekly. The articles were published over a three day period.

Ms Wilson argued that the articles were seriously defamatory, because they imputed that she was a serial liar who had told lies about her real name, age, aspects of her upbringing and events in her life. In its defence, the publisher (Bauer Media Pty Ltd) did not generally contest that the articles were defamatory, but argued instead that publication of the articles was justified, that any imputations damaging to Ms Wilson’s reputation were “trivial” and that they were entitled to make the statements that gave rise to the imputations because of “qualified privilege”.

 The publisher’s defences

 The case was heard before a jury, which ­–  as it found for Ms Wilson ­– clearly rejected the publisher’s defences.

While we can’t know what happened in the jury room and why they rejected the defences, the court’s judgement on damages sets out a number of comments on the defence of “qualified privilege” raised by Bauer. Essentially, this defence deals with whether there is a legitimate duty and interest in publishing the relevant matter. There are some differences between how this defence operates at common law and under the defamation legislation that now operates in each state and territory, with the legislation allowing the common law defences to continue alongside the statutory ones.

For the statutory defence of “qualified privilege (to be decided by the jury):

  • the recipient has to have an interest or apparent interest in having information on some subject;
  • the defamatory matter has to be “published” to the recipient in the course of giving information to the recipient on that subject; and
  • the conduct of the person publishing the defamatory material has to be reasonable in the circumstances.

For the common law defence (to be decided by the judge):

  • there has to be a “community of interest” between the person publishing the defamatory material and the recipient (or a “duty” and a reciprocal duty” in relation to the information);
  • it must be in the general interest of the whole community that the type of material in question be published in relevant type of circumstances;
  • there must not be any malice present when the material was published (in other words, that there was an indirect or improper or foreign motive for publishing the material, other than to meet the common interest”).

By agreement between the parties, only the statutory formulation was put to the jury – the Court also noting that, as the articles had been published over the internet, Bauer would have real problems maintaining the common law defence, The jury rejected that Bauer had a statutory defence of qualified privilege, and the judge also rejected the common law defence given that:

  • the primary purpose of publishing the articles was to reap maximum financial benefit through a campaign against Ms Wilson while she was most in the public eye (just after the release of a highly successful film);
  • the evidence didn’t establish that readers had any relevant interest in receiving the (false) information that was published; and
  • publishing celebrity or gossip journalism – described by the judge as “ephemeral entertainment or titillation” – to the world at large is not a “duty” that the court would protect as a legitimate interest.

Damages

So what led to the award of damages in this case being so high – over four times the previous highest award of damages for defamation in Australia?

In brief, the circumstances were such that Ms Wilson was awarded very high general damages (including on an aggravated basis) and very high “special loss” for economic loss).

The Defamation Act currently limits the amount of damages that a court can award for “non-economic” loss to $389,500. Damages up to this amount signal the extent to which a court wants to vindicate the plaintiff’s reputation and the extent to which the court thinks a plaintiff should be compensated for hurt feelings and lost reputation – including through “the grape-vine” effect of information being passed on beyond the actual readers of the defamatory material to others.

In this case, the court noted that Bauer:

  • published unsubstantiated anonymous allegations, in circumstances where the person making the allegations had been paid to provide information;
  • knew that the defamatory imputations were false but published anyway;
  • repeated the imputations across a number of its publications to maximise the commercial opportunities and to counter the attempt by Ms Wilson to neutralise and correct the public record;
  • intended the defamatory;
  • didn’t care about the effects of the publications on Ms Wilson’s reputation; and
  • didn’t bother cross-checking any of the information with Ms Wilson herself or her family or other people connected with her (including any other fellow-students at the school she attended).

The court also noted that, at one point, the writer of one of the Bauer articles sent a “series of insulting and harassing messages to members of Ms Wilson’s family, her American agent, and the Disney Corporation” – all of which further aggravated the damage. The court also noted that, far from being either “light-hearted” or trivial as Bauer had claimed, the defamations were serious. Further, Bauer had persisted in maintaining defences (including that the imputations were true) right to the end of the case and had never apologised. The court also noted how broadly the imputations were published – creating a “huge international firestorm” ­ and that at no point had Bauer made any apology or published any retraction. The court (understandably) found that factors such as these had caused Ms Wilson a great deal of distress.

The court therefore concluded that substantial damages had to be awarded, including on an aggravated basis, and ordered that Bauer pay Ms Wilson general damages of AU$650,000.

In addition, the court awarded Ms Wilson “special loss” damages of AU$3,917,472 – representing an amount notionally equivalent to a one in five chance that Ms Wilson missed out on some US$15 million in film roles because of the articles. (Following publication of the articles, Ms Wilson found that here film career in the US had essentially dried up.)

Bauer had disputed that Ms Wilson had suffered any special damage from the articles, in particular because any economic loss related to her acting career was in the US and Ms Wilson had not claimed any publication or republication of the articles in the States.

However, the court held that this argument missed the point and held that, on the balance of probabilities, the defamation in Australia had caused Ms Wilson to lose roles in US movies, and therefore had caused her special economic loss. In particular, the court noted that Bauer had presented no evidence to cast any doubt on the circumstantial evidence before the court that the defamations caused an abrupt stop to her career trajectory. In this context, the court particularly noted the evidence that had been given that the story was widely reported in the US, including on Twitter, on radio and on TV.

Costs are yet to be assessed, but it is likely that Bauer will have to pay both its own costs and a high proportion of those incurred by Ms Wilson.

It is also worth noting that Ms Wilson has affirmed that she will be donating the damages to Australian charities, scholarships or the film industry.

What are the implications of the case?

Oscar Wilde once stated to the effect that there is only one thing in life worse than being talked about, and that is not being talked about.

Given the nature of the material published in a lot of gossip magazines, one does suspect that a lot of people in the media eye are prepared to put up with a certain amount of rubbish and lies on the basis that at least articles about them keep their names in front of the public. However, as this case clearly demonstrates, complacency on the part of publishers that any rubbish or lies can be published will likely get them into both legal and financial trouble, particularly as in cases such as this where the publisher seems to have gone out of its way to propagate and spread vicious attacks on a celebrity’s basic honesty and integrity, without no factual basis at all for doing so.

That so few celebrity cases come to court may well also be indicative of the difficult position any defamation puts a person in. As discussed in parts of the judgement in this case, is the best approach when you get negative press to ignore an article – whatever the hurt – in the hope that the matter goes away and the public loses interest, or you take action and risk keeping the negative spot-light on you right up to and through any trial, with all the attendant media circus?

From all reports, sales of gossip mags have been in decline for some time, so the ability of publishers to absorb large damages awards such as in this case will likely lead to tighter editorial policies around both what and how they report on celebrities. The outcome in this case may also therefore mean that people whose reputations are potentially damaged by articles in gossip magazines will feel on stronger ground to lodge “Concerns Notices” and negotiate early settlements of claims, but look out for whether “apology” sections of gossip mags suddenly become rather more active.

The principles in this case also apply more broadly than just to gossip magazines and their websites, and extend to any social media platform or blog, so spread or propagate gossip either online or in print your own risk!

And for other publishers?

If you’re publishing about real people, defamation risk can never be eliminated entirely, but a good deal can be done to minimise risk. For example:

  • always make sure that your author is clear about who is responsible for checking on facts;
  • make sure your authors let you know what research they’ve done – and not from gossip mags – in relation to establishing facts (and that they provide you with copies of or references to that research);
  • also always make sure your authors let you know whether their works are based on real people (even in fiction works);
  • enshrine obligations relating to the above points in the author agreement;
  • when considering drafts, stand back from the work and see whether the author is being fair to anyone referred to – or are you (or your writer) pursuing an angle or a “story” at all costs;
  • consider cross-checking information directly from people referred to in a publication and, if possible, consider getting consents from people if you think a portrayal or reference may upset them;
  • be skeptical of anonymous sources – particularly if you’re paying them to dish dirt;
  • if a reference or portrayal is more likely than not to be defamatory, get advice as to whether or not a defence really is likely to be available (for example, is it a straight report of matters on the public record – such as in court or coronial proceedings or a Royal Commission – or is what is being inferred about the person able to be proved from independent sources?); and
  • if there is a complaint, deal both promptly and reasonably with the person’s concerns.

If you need advice on defamation law – either because you are wanting to publish something and are concerned it might be defamatory or because you are concerned about something someone has published about you – contact defamation lawyers Adam Simpson or Ian McDonald at Simpsons Solicitors.