It’s a great time to be a defamation plaintiff. Publisher and defendant? Not so much. Here are the key points publishers can take from the decision in Geoffrey Rush’s defamation claim against The Daily Telegraph.
- Big money: general damages are now regularly exceeding the statutory cap (a bit under $400k) when the publisher’s conduct justifies an award of aggravated damages. Not apologising, sensational language, improper motives, dishonesty and poor fact checking are all factors.
- Sue in the Federal Court: a plaintiff can dodge the prospect of a jury by suing here rather than a state court. That means the judge alone will decide whether imputations arise and whether they are true. That’s a strategic advantage for plaintiffs, especially where the story raises broader social issues deserving the collective consideration of a jury.
- Don’t go too early: the Tele’s pre-publication work was not up to scratch. For a sensational story like ‘King Leer’ it should have at least had a statement from (and the consent of) the complainant, Eryn Jean Norvill. The Tele’s truth defence was struck out in its entirety before she agreed to give evidence much later in the case. In a defamation case, that’s about the worst position a news publisher can be in.
- Loose language: this will expose you to broader imputations which are harder to defend. Because they didn’t give specifics of what Rush had allegedly done, the Tele articles were open to the more serious imputations that Rush was a pervert and a sexual predator.
- Context can expose you too: placing the Rush story beside a story about Don Burke was a factor in the judge finding that the pervert and sexual predator imputations arose, and in awarding aggravated damages.
- Qualified privilege: this defence requires reasonableness in how you go about making a publication. Considerations in the decision to publish are relevant. What happened after the event is not. The Tele was not permitted to rely on things it found out post-publication to support a qualified privilege defence. It ended up abandoning the defence altogether.
On the whole, the Tele’s approach to the Rush story is a bit of a ‘what not to do’. If in doubt, don’t do what the Tele did.
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