Late last year the Supreme Court of New South Wales awarded the Royal Society for the Prevention of Cruelty to Animals New South Wales (RSPCA NSW) A$100,000 in damages, arising from the publication of defamatory material appearing on the internet and distributed by email.

Among other things, the defamatory publication imputed that RSPCA NSW needlessly destroys animals and is a corrupt organisation that misuses public donations.

The publication was authored by the defendant, Mal Davies, both on a website edited by him, and in an email sent to over 70,000 subscribers.

The case is of interest for a number of reasons:

  • ordinarily, corporations with more than 10 employees cannot sue for defamation unless, as was the case here, the objects for which the corporation is formed do not include obtaining financial gain for its members. The Court in this case accepted that RSPCA NSW was entitled to sue for defamation
  • the defendant, Mr Davies, did not respond to correspondence from RSPCA NSW or its solicitors prior to the commencement of proceedings, and the Court allowed the defendant to be served with the Statement of Claim by email and Facebook message, rather than personally as is usually required. The Court appears to have accepted that the Statement of Claim was received by the defendant because the email was acknowledged by an automatically generated "delivered" return receipt
  • although, unlike individuals, corporations cannot recover damages in defamation for hurt feelings, the Court nevertheless considered recent damages awards for individuals in assessing an appropriate award for RSPCA NSW. The Court then concluded that A$100,000 (about one third of the current statutory damages cap) was an appropriate award, noting that RSPCA NSW is reliant upon its reputation to carry out its day-to-day functions and the publication has a capacity to affect the flow of donations
  • in addition to the award of damages, the Court granted an injunction preventing further similar publications as the one sued over. This goes against a tradition of not ordering injunctions in defamation proceedings where damages would be an adequate remedy for the plaintiff. In this case the Court specifically took into account the "medium" of the publication (ie internet and email), as creating a "real risk that the defendant will not desist unless by order of a court".

The case is a timely reminder to internet publishers that they are equally accountable for defamatory materials as are traditional publishers, and perhaps even more likely to be injuncted from online publications than other forms of publication. Indeed the Court in the RSPCA NSW case noted that the, "'grapevine effect' has particular application with electronic publications on the internet, where the publication is available to the world and may be downloaded easily or forwarded as a link to others."

Finally, the case highlights the benefits of activating the automatically generated "delivered" return receipt on your email!

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