Australia: Publishers up for $300,000 for publishing defamatory newspaper articles actuated out of malice

Introduction

In the recent judgment of Gayle v Fairfax Media Publications Pty Ltd (No 2); Gayle v The Age Company Pty Ltd (No 2); Gayle v The Federal Capital Press of Australia Pty Ltd (No 2) [2018] NSWSC 1838, the NSW Supreme Court ordered three defendants to pay a combined $300,000 in damages to famous West Indian cricketer, Chris Gayle for articles published by Fairfax Media in Sydney, Melbourne and Canberra, which claimed Mr Gayle exposed himself to a female massage therapist while in Australia for the World Cup in 2015.

The defendant publishers admitted that the articles were defamatory of Mr Gayle, but sought to defend the proceedings on the basis of both justification (i.e. substantial truth) and qualified privilege.

Background

In 2016, over the space of 5 days and 28 articles, the  publishers made repeated allegations against Mr Gayle in The Sydney Morning HeraldThe Age and The Canberra Times, accusing him of intentionally exposing his genitals  to the West Indies team massage therapist, Leanne Russell, in a change room at training at Drummoyne Oval,  indecently propositioning her and otherwise indecently exposing himself.

Mr Gayle claimed general damages for non-economic loss, including aggravated damages. There was no claim for special damages (economic loss) and injunctive relief to stop any repeated publications in the future.

Hearing

  The publishers admitted that the articles conveyed meanings that were defamatory of Mr Gayle, namely that he intentionally and indecently exposed himself and also indecently proposition Ms Russell. However, they defended the proceedings on the grounds that the relevant statements were substantially true and subject to qualified privilege, pursuant to sections 25 and 30 of the Defamation Act 2005 (NSW), respectively.

The proceedings were heard by a jury, with the jury not finding that any of the statements was true or substantially true. They also found that the publication of the articles was actuated by malice, which defeated any available defence of qualified privilege

Mr Gayle's further application for an injunction to stop any repeated publications in the future was rejected by her Honour Justice McCallum on the basis that there was no apparent risk of a repeated publication.

Damages 

In assessing damages, her Honour accepted evidence from Mr Gayle's cricket coach that he had been a big role model to young cricketers, a very popular cricket player and a well-respected figure, both within his various teams and to the public. Her Honour accepted that "the defamation went to the heart of Mr Gayle's professional life as a respected batsman" and that the allegations of indecent exposure and associated conduct was very damaging to Mr Gayle's personal and business reputation.

Interestingly, a submission was made on behalf of Mr Gayle that each defamatory imputation was "probably would have constituted criminal conduct"; however, her Honour pointed out that a plaintiff must not be compensated for an imputation that is not alleged in his or her pleading.

The publishers submitted that the correct approach was to assess damages "holistically as though there were a single dispute involving the publication of a single series of articles within three geographical areas".

Her Honour agreed that:

"... there is much to be said for that approach in circumstances were articles are syndicated over several newspapers within the same national jurisdiction."

Ultimately, damages were awarded in the total sum of $300,000 across against all publishers. Her Honour indicated the amounts that she would have assessed against each publisher individually, being $250,000 against The Age; $200,000 against Fairfax Media Publications; and $100,000 against Federal Capital Press, but that this did not account for double or triple compensation. She said that the award of $300,000 as a holistic figure took into account that the syndicated publication increased the scope of publication and caused some separate hurt and harm to Gayle.

Aggravated damages

No aggravated damages were awarded to Mr Gayle on the basis that he had not sufficiently demonstrated that he suffered from any increased hurt to his feelings due to the conduct of the publishers.

Appeal

The publishers have stated their intent to file an appeal, arguing that the jury was misled and the trial was not conducted fairly.

Implications

As is more often the case with defamation proceedings these days, it is hard to pick how a Court will necessarily assess defences and damages. For any insurers extending cover for defamation, trying to accurately underwrite such risks is becoming more and more difficult.

For example, in this case, there was no award for aggravated damages (which can have the effect of removing the statutory cap on general damages) and her Honour awarded damages against three defendants on a "holistic basis", with the exact allocations yet to be made.

Fairfax Media has otherwise bemoaned the nature of defamation laws in Australia, stating that:

"The damages award merely confirms the appalling burden of defamation laws in this country."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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