More on defamation and blogging

It seems that the threat of defamation proceedings for blog posts is alive and well in Australia. Check out this post on The Local at blogs.com.au.

(Hat tip to the inestimable Jim Belshaw)

Defamation and anonymous blogging

Has anyone else ever put comments up in online forums, or in response to newspaper stories or blog posts? If you’re reading this post, I suspect that you might have been tempted to do so. You know the drill then. You are required to enter your name in a box headed “Name”, and then you are required to enter an e-mail address. Usually, there is a disclaimer beside the box, stating “will not be published” or “for verification purposes only” or something of the sort. Perhaps you have used a psuedonym, feeling safe in the knowledge that no one will know who you are. Given a recent case in the UK, perhaps you need to mind what you say.

In Sheffield Wednesday Football Club Inc v Hargreaves [2007] EWHC 2375 (QB), a football club, Sheffield Wednesday, and members of its board of directors sued the owner and operator of a fan website, www.owlstalk.co.uk, for defamation. The plaintiffs sought to require the website to disclose the e-mail addresses of contributors to a fan chat forum whose contributions were said to be defamatory.

At the outset, taking off my lawyer’s wig and adopting a practical point of view, it seems to me that if one’s fans are already offside, then suing those who are critical of your management isn’t going to increase your popularity with the fan base… Just a thought.

In any case, the comments were made by some 11 anonymous contributors, all of whom were fans of Sheffield Wednesday. All of the comments were scathing about the way in which the plaintiff chairmen/directors and others had managed the club.

Richard Parkes QC said at the outset at [9]:

…in a case where the proposed order will result in the identification of website users who expected their identities to be kept hidden, the court must be careful not to make an order which unjustifiably invades the right of an individual to respect for his private life, especially when that individual is in the nature of things not before the court.

Ultimately, his Honour decided that the defendant should be required to divulge the details of only those contributors whose comments were of the most serious nature (at [17] – [18]):

It seems to me that some of the postings…border on the trivial, and I do not think that it would be right to make an order for the disclosure of the identities of users who have posted messages which are barely defamatory or little more than abusive or likely to be understood as jokes. That, it seems to me, would be disproportionate and unjustifiably intrusive. …

The postings which I regard as more serious are those which may reasonably be understood to allege greed, selfishness, untrustworthiness and dishonest behaviour on the part of the Claimants. In the case of those postings, the Claimants’ entitlement to take action to protect their right to reputation outweighs, in my judgment, the right of the authors to maintain their anonymity and their right to express themselves freely, and I take into account in this context the restrictions on the use of defamatory language which the rules of the Defendant’s bulletin board impose, restrictions which in the case of these postings appear to have been breached. I take into account also that the Defendant does not appear to have had any policy of confidentiality for the benefit of his users.

Having read the exerpts of the comments in the judgment itself, the comments in fact seemed pretty tame compared to some things I’ve read in the blogosphere. I could imagine the comments being made by disgruntled fans in the pub after the match, and indeed, I think this is very much the way in which the fans themselves saw it; except that they had put the comments in writing on a public forum, which gives the comments a very different status.

People often treat e-mail and online forum comments as if they are “verbal” rather than “written”. But what could just be a disgruntled whinge may come across as something altogether more serious when put in writing. I fell into this trap once myself with e-mail, and vowed never again to communicate problems via e-mail, as they lack “tone”, and may come over so much more harshly as a result. 

Furthermore, it’s easy to be nasty if you are just typing a comment and don’t have to look someone in the eye when you make it. I once dealt with a client who was pleasant if you saw him in person, but typed vicious and unreasonable e-mails asking you to crush the other side and give no mercy, even if the dispute was partly of his own making. My tactic was always to ring him back about the e-mail and get him to soften the instructions thereby. I’ve never found a “take-no-prisoners” approach to be effective. Softly, softly, catchee monkey…and go in for the killer punch if necessary at the end.

It’s even easier to be vicious if you are anonymous, because if you want to make up a sufficiently obscure psuedonym, even your own mother might not realise you made the comment, so you don’t have to take responsibility for it. Although I write under a psuedonym on this very blog, I always write as though I was writing under my own name. I’m sure it’s easy enough to work out my real identity if anyone really wanted to do so.

The lesson for us all is to be very careful with what we say. Would we be embarrassed to own up to it? Is what we are saying truthful? It seems that it was important in this case that (a) there was no confidentiality policy in place to protect the details of contributors and (b) there was a policy that abusive/defamatory comments should not be made. At the very least, those who run internet forums and the like will have to revise their confidentiality policies if they wish to protect the details of contributors.

Any comments, of course, will be treated STRICTLY CONFIDENTIALLY (just for the record, in case any judges out there are reading this blog).

The unpalatable truth

I was interested to read about a recent High Court decision, John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28, concerning an allegation that a restaurant review was defamatory. A majority has found that a September 2003 review of Sydney habourside restaurant Coco Roco was defamatory. The restaurateurs claimed they lost 2700 customers immediately after the story, with most citing the review as the reason why. Shortly afterwards, Coco Roco was in liquidation.

Of course, the first thing I wanted to do after hearing that was to read the review. Here are some choice extracts:

If a restaurant serves good as well as bad food, do you give it the benefit of the doubt? I wouldn’t do that with a three chef’s hat restaurant, so why should I do it here? Especially when more than half the dishes I’ve tried at Coco Roco are simply unpalatable.

Coco Roco is the swank new eatery at King Street Wharf. The opening was touted as ‘Sydney’s most glamorous restaurant’. If glamour peaked at about 1985, then perhaps they’re right. Something about the polished stainless steel around the open kitchen and the black reflector tiles in the bathroom make me feel I should be wearing a pink shirt and a thin leather tie. Maybe it’s just me.

What isn’t disputable is that this place has had a $3 million fitout, has views westwards over the water and scored Sarah O’Hare as its official guest at the opening. It has set itself up as a flash restaurant with big-end-of-town prices. Its business card even boasts that ‘A new level of dining comes to Sydney’s King Street Wharf.’ I couldn’t agree more.

Coco Roco is actually two restaurants: Coco, the posh place upstairs off Lime Street, and sibling Roco, also smartly fitted out on the foreshore. Forever in pursuit of excellence, we chose the more expensive option.

Expensive is right. Mains skid dizzily from a vegetarian dish at just under $30 and crash over the $50 mark. It’s a brave restaurateur who tries that without the goods to back it up.

A degustation of oysters ($28 for six/$40 for 12) arrives as different flavoured bivalves, rather than as oysters from various regions. There’s a saffron infused gin one. There’s a seafood foam which looks like it’s been piped on top. The texture is scary and, let’s be polite, not to my tastes. The limoncello, however, is worse – flavours jangle like a car crash; all at once it’s sickly sweet, overtly alcoholic, slippery, salty and bitter.

…

On a side dish, three house-made mustards – milk, Guinness and lavender – prove that some things are better left alone.

…

I’ve never had pork belly that could almost be described as dry. Until tonight. A generous square of pig’s paunch ($33) is snuggled into a mass of starchy lentils. The meat is unevenly spiced with Moorish flavours and the lentils are poor. Texturally, it brings to mind the porcine equal of a parched weetbix.

…

In a city where harbourside dining has improved out of sight in recent years, Coco Roco is a bleak spot on the culinary landscape.

…

Whew! Yep, that’s pretty full on. If I had a booking there (unlikely, I think the concept of a $50 main is ridiculous), I would cancel it after reading that review.

Prior to trial, it was held that there were four potentially defamatory imputations that could be drawn from the review:

(a) The respondents sell unpalatable food at Coco Roco.

(b) The respondents charge excessive prices at Coco Roco.

(c) The respondents provide some bad service at Coco Roco.

(d) The respondents are incompetent as restaurant owners because she/he employs a chef at Coco Roco who makes poor quality food.

The trial of the proceeding was conducted pursuant to s 7A of the Defamation Act 1974 (NSW) which applied at that time. According to s 7A(3), if the court decided that the defamatory material was capable of holding the alleged imputations, and that the imputations were defamatory, then the jury was to decide whether this was in fact the case. Only imputations (a) and (c) were considered before the High Court. A majority of the High Court found that the review did carry the imputations that the respondents sold unpalatable food and that the respondents provided bad service, and that these imputations were defamatory.

The defamation in question was said to be “business defamation”. Gleeson CJ and Crennan J explain this concept as follows at paragraph [2]:

Suppose someone says: “X is a thoroughly decent person, but he is showing signs of age; his eyesight is poor, and his hands tremble.” That would not be a reflection on X’s character. It would be likely to evoke sympathy rather than hatred, ridicule or contempt. If, however, X were a surgeon, the statement could be damaging. To say that someone is a good person, but a dangerously incompetent surgeon, is clearly likely to injure the person’s professional reputation.

The issue which was the subject of the appeal was the test put to the jury. Ordinarily, the test for finding whether material is defamatory is whether that it would lower a person in the eyes of ordinary, right-thinking members of the community. However, because the case concerned business defamation, the test was different. It was whether the material would be likely to injure a person in his or her trade or profession by reason of suggesting unfitness or incompetence or something of that nature.

The jury found that imputations (a) and (c) were conveyed but were not defamatory, and that imputations (b) and (d) were not conveyed. Judgment was entered for the appellants. The plaintiffs (the restaurateurs) then appealed to the Court of Appeal. The Court of Appeal held that the trial judge’s direction was not adequate, in that she failed to draw the necessary distinction between business defamation and personal defamation. The tests were entirely different. The Court of Appeal found that no reasonable, properly directed jury could have decided that the imputations in (a) and (c) were not defamatory, having regard to the test for business defamation.

The defendants (the newspaper) then appealed to the High Court. There were a number of matters which were at issue before the High Court. First, there was the question of whether the Court of Appeal was entitled to substitute its judgment of fact for the judgment of the jury. The High Court concluded that it was entitled to do so pursuant to s 108(3) of the Supreme Court Act 1970 (NSW). Secondly, there was a question of whether the jury were entitled to take community standards into account when deciding whether imputations (a) and (c) were defamatory. The majority rejected this submission. For example, at [190], Callinan and Heydon JJ concluded:

Business capacity and reputation are different from personal reputation. Harm to the former can be, as here, inflicted more directly and narrowly than harm to a person’s reputation. A person who does not have an admirable character may be a very good restaurateur. It might be possible to say things about him or her personally that are not defamatory, but not about that person as a restaurateur in relation to the conduct of the restaurant. Restaurant standards rather than community ones are the relevant standards in that situation. No community standard or value could obliterate or alter the defamatory meaning of the imputations in this case. It is unimaginable, in any event, that the estimation of the respondents in the mind of any adult person, let alone a reasonable reader, would not be lowered by a statement that they sold unpalatable food and provided bad service at their restaurant, and did so for considerable sums of money.

Kirby J dissented on both questions. The nub of his dissent, at [143], is worth reading:

Moreover, on subjects such as a criticism of a restaurant’s food and service, lay jurors are much more likely to reflect community standards than judges, many of whom, like myself, have no special interest in culinary matters, expensive restaurants or cuisine generally. Astonishing as it may seem, judges may occasionally lack a sense of irony or humour. Some may undervalue “free speech” or sometimes even feel hostility to a “free press”. In such matters, therefore, there is safety in the numbers of a jury. It was an error of the Court of Appeal to consider that community standards were insignificant in judging the suggested defamatory character of the review of the respondents’ restaurant. With all respect, such an attitude contradicts the legislative preservation by s 7A(3) of the function of a jury. That function is not unreviewable. It does not exclude a proper role for the Court of Appeal. But the jury’s function is still very important. Because Parliament exceptionally provided for it, it is to be respected in defamation actions.

I rest my case: Kirby J is a hip cat. It is, as his Honour suggests, a instance where Parliament has required that the lawyers refer a matter to the general public to see what they think of a matter. The general public answers in a way which leads lawyers to think, “That’s not the right answer!”, and then proceed to argue that the “right (lawyerly) answer” should be substituted.

What, then, is the point of asking a jury what it thinks about a matter if judges are just going to overrule the jury when they don’t come up with the answer that a lawyer would come up with? Isn’t that the whole point of a jury? I understand that it is scary for lawyers to put things in the hands of the hoi polloi, but for goodness sakes’, sometimes we lawyers need a reality check. I have described in a previous post how lawyers see things quite differently to the rest of humanity. Sometimes that’s a good thing, but sometimes, it means that we are “out of touch”. We can make the illogical seem perfectly illogical.

I’m going to try to take off my wig and gown here and put on my “foodie” hat. I’ll try to think with my stomach. Speaking as someone who loves her food, I would like food critics to be able to write honestly about restaurants. Who wants to read a review where the reviewer pussyfoots around because he is worried about making a defamatory comment? What about an unfavourable review of a book? Or a CD? Where do we draw the line? Aren’t we entitled to make public criticisms of someone’s work when they put it out there for us to judge?

Of course, it has to be noted that the trial isn’t over yet. The defendant newspaper still has to file its defences. Perhaps it will be able to establish a defence on the basis that the review was truthful, or that freedom of speech requires that the review be published.

Still, the decision represents a worrying tendency for lawyers to presume that we know better than anyone else, even when we ask ordinary people to make a judgment for us.

The Fisherman

Last night, I watched the documentary The Fisherman on ABC television. Some of you may recall that this documenary was the subject of a recent High Court decision, Australian Broadcasting Corporation v O’Neill [2006] HCA 46. The High Court removed the interlocutory injunction to which the documentary was subject.

I didn’t have time to write anything about the case at the time, as I was buried under a mountain of marking, but if you want an excellent and punchy analysis, may I suggest Armagnac’d’s recent post on the topic? I shared Armagnac’d’s pleasure at the emphasis on freedom of speech, and his discomfort about the way in which the majority characterised O’Neill. Sure, he’s a convicted child killer, but does that mean that he can be treated as beyond redemption by the law of defamation?

Do I feel differently now that I’ve seen the documentary? Well, I’m glad I got to see it. It was interesting, although somewhat depressing.

The thing which worries me about the whole procedure above is that none of the judges (the trial judge, the Full Court of the Supreme Court of Tasmania or the High Court) were given an opportunity to see the documentary before making a decision. I think the comments of Kirby J (in dissent) at paras [108] – [109] are pertinent:

“Instead of applying for an expedited hearing of the trial of the substantive action, the ABC…contested the provision of temporary protection until the asserted justification of the intended broadcast could be judged at trial. Callinan J, in circumstances not wholly dissimilar to the present, remarked that the “claimed need for urgency of communication to the public” has, on occasions, been “exaggerated”:

“[Earlier cases] show that the assertion that news is a perishable commodity often lacks foundation and the ends to which publishers may be prepared to go in pursuit of their own interests. The asserted urgency as often as not is as likely to be driven by commercial imperatives as by any disinterested wish to inform the public. It would be naive to believe that the media’s priorities would be otherwise … It will be rare in fact that the public interest will be better served by partial truth and inaccuracy this Tuesday than balance and the truth on Friday week.”

Even if the delay in securing a hearing of the respondent’s substantive proceedings against the ABC would, as here, have been more than a few weeks, it is hard to believe that it would have been as long as that occasioned by the interlocutory appellate process launched by the ABC. This is one reason why appellate courts are, and should be, reluctant to interfere in the provision of interlocutory injunctions. The course adopted suggests that the appeals have been brought by the ABC in an endeavour to prove a point that, even in so grave a defamation as that alleged here, free speech trumps not only the reputation of the respondent, but also his right in principle to have his reputation protected until the contest can be decided on the merits in a full hearing.” [citations omitted]

The documentary was not as defamatory as I thought it would be. O’Neill obviously has deep-seated psychological problems, and had a troubled upbringing. He came across as pleasant and intelligent, but somewhat evasive. At a subconscious level, I found something about him disturbing. Davie investigated possibilities, but as he acknowledged, in the end he couldn’t actually prove anything. All he could suggest was that the movements of O’Neill warranted further investigation. O’Neill apparently told people he was responsible for the death of the Beaumont children, but he also told people he was a Vietnam veteran, a drover, an accountant, that he an ASIO spy and that his mother’s boyfriend was a gangster who shot him. Davie notes that none of the latter claims were true.

I think that there is a right to freedom of speech, and it was in the public interest that this documentary be shown. Of course, in saying that, I note that I have no expertise whatsoever in defamation law, and so my opinion is tantamount to a lay person’s opinion.

However, I also think Kirby J is right. It would have been fairer to the plaintiff to expedite the final hearing of the defamation trial rather than overturn the interlocutory injunction. That way, the trial judge could have decided whether the documentary should be shown for once and for all. The trial judge would have had an opportunity to make a fully informed decision with all the evidence, taking into account freedom of speech and public interest. If one applies the reasoning of the majority, it seems that a plaintiff cannot ensure that release of defamatory material can be deferred until a proper determination is made.