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