Has Defamation Law Gone To The Dogs? (A Brief Summary Of Australian Defamation Cases Relating To Dogs)

Not all legal articles have to be entirely serious

We are now fast approaching Christmas such that the "silly season" is no doubt well and truly here. In such a context it seems apt to move away from the scholarly or serious legal article to one that may be (we hope) a little bit more interesting and amusing than is the norm. Having said that, we hope that there are still a few "take homes" to be obtained from this article.

An interesting subgenre - dogs in defamation law

In a world where many millennials and Gen-Z (and not a few Boomers and Gen-Xers) insist on treating their pets as "fur babies," it should perhaps come as no surprise that in recent years there have been quite a number of decided defamation cases that have a distinctly canine flavour. Indeed, given that the breeding ground for most defamatory publications are circumstances that give rise to strong views and emotions, it should come as no surprise that people who really care about their pets can become embroiled in such disputes. Set out below are summaries of recent defamation cases concerning Instagram-famous cavoodles, missing puppies and "pet detectives", inflated vet bills and allegations of puppy farming. These cases, while interesting (and somewhat amusing) in and of themselves, illustrate how social media and sensationalist reporting can turn what might be otherwise regarded as petty (Yes - pun intended) personal conflicts into complex and high-stakes defamation proceedings.

Munro v Wheeler - A Missing Puppy and Facebook Posts

In Munro v Wheeler (No 3) [2025] NSWDC 3 (Munro), a missing King Charles Cavalier Spaniel puppy named Teddy sparked a social media storm, and a defamation claim.

On 9 June 2020 the plaintiffs found Teddy during a walk and posted a photo of him on a community Facebook page before deleting it shortly after. The first plaintiff subsequently stated in evidence she intended to take Teddy to a licensed microchipper to scan his microchip, but Teddy escaped from her car before this could happen. The plaintiffs did not try to locate Teddy afterward and did not come forward until they were publicly identified in Facebook posts.

The 2 defendants - the mother in the family that owned Teddy and a "pet detective" respectively - had launched a public search, posting on Facebook CCTV images of the plaintiffs holding Teddy. Comments made in respect of the posts suggested that the plaintiffs had stolen Teddy. The plaintiffs claimed that the posts and comments carried imputations defamatory of them, including that they had stolen Teddy and acted dishonestly.

After 10 hearing days, the court ruled in favour of the defendants, finding that the plaintiffs failed to establish that the defendants had published the material as alleged. Even if publication had been proven, the court held that the defendants' defences - including justification, honest opinion, and fair comment - would have succeeded. As the defendants were successful in their defence of the matter, the plaintiffs were liable to pay costs to the defendants, resulting in a substantial $660,000 costs order.

This case illustrates the complexities and limitations of defamation law, particularly when social media is involved. The plaintiffs' claim fundamentally failed because they could not prove that the Facebook posts and comments were a single publication or that anyone had actually read them. Even if publication had been able to be proved, the plaintiffs would not have been successful anyway. This case serves as a salutary lesson on the perils of embarking on defamation litigation. This was not lost on the trial judge, Her Honour Gibson DCJ, quoting from a 1990 essay by David Hunt J (at paragraph [68] of the judgment):

"Another piece of advice that should be given is that commencing a defamation action is like taking a tiger by the tail - it is very difficult to let go without serious injury."

However, perhaps the saddest thing about this entire matter is that Teddy is still missing.

Asbog Veterinary Services v Barlow - Overpriced Vet Bills and Social Media

In Asbog Veterinary Services Pty Ltd v Barlow [2020] QDC 112 (Asbog), a routine vet visit turned into a costly legal battle over critical social media posts.

The defendant took her injured dog, Valentine, to Albion Veterinary Surgery (owned by the plaintiffs) for treatment after he was attacked by other dogs. After being charged $427 for the treatment, the defendant queried the invoice and the alleged excessive markups on medications. Unsatisfied with the response, she posted a series of critical comments on Twitter, True Local, and the Albion Vet's Facebook page, accusing (in one of the posts) the clinic of charging a 400% markup on antibiotics and engaging in unfair business practices.

Lawyers for the plaintiffs (being the veterinary clinic and the principal vet) issued a concerns notice to the defendant claiming that the posts conveyed imputations defamatory of the plaintiffs, including to the effect that the clinic grossly overcharges and takes advantage of its clients and that the principal vet was not a suitable person to be a vet. Whilst the posts were subsequently taken down, the defendant refused to apologise publicly, and the plaintiffs filed a defamation claim. The defendant initially offered to delete the posts and apologise but later participated in interviews with The Courier Mail andA Current Affair about the dispute.

The court ruled in favour of the plaintiffs, awarding damages a combined $25,000, plus interest and costs of the proceeding on an indemnity basis. The court found that the posts carried the defamatory imputations and that the defences of substantial truth (justification), and honest opinion failed.

This case illustrates that even if a customer believes they've been wronged, publicly airing complaints or grievances without good foundation (and a means of evidencing such foundation) can have costly consequences. This is a good example to be careful before putting fingers to keyboard and taking to social media to air one's discontent.

Edwards v Nine Network - A Custody Battle for an Instagram-Famous Cavoodle

Undoubtedly the most high-profile defamation case with canine connections involved a bitter custody dispute over a cavoodle named Oscar.

In Edwards v Nine Network Australia Pty Ltd [2024] FCA 422 (Edwards), Ms Gina Edwards (a Sydney barrister) claimed that two A Current Affair broadcasts and related articles defamed her by implying that she had stolen Oscar and exploited him for financial gain.

The broadcasts were based on claims by Mr Mark Gillespie that Ms Edwards and her husband had acted as Oscar's "dog-sitters" while Mr Gillespie was overseas and later refused to return him. Mr Gillespie had also alleged that Ms Edwards had used Oscar's popularity on Instagram to secure endorsements from pet food companies.

The sensationalist broadcasts and articles portrayed Ms Edwards negatively, with sarcastic and pun-laden commentary from A Current Affair reporter Steve Marshall. Included in all this, and taking centre stage, was what Justice Witney described in the judgment as a "rather chaotic and fraught encounter" at a dog park between Ms Edwards and Mr Marshall and then Mr Gillespie, who just so happened to arrive on the scene.

The court found that the broadcasts conveyed defamatory imputations, including that Ms Edwards stole Oscar and sought to monetise him for financial benefit. The court rejected the defences of justification and contextual truth, finding that the defendants failed to prove that the defamatory imputations were substantially true or that any harm caused was outweighed by other contextual imputations. As such, the court ruled in favour of Ms Edwards, awarding $150,000 in compensatory and aggravated damages.

It is very interesting that the defendants were not able to make out the truth defence in respect of the imputations of stealing Oscar, given that the Court did find that Ms Edwards had obtained possession of Oscar by deception and that Ms Edwards did not actually have any ownership rights or rights to possession of Oscar. However, and crucially, the court found that at the relevant time Ms Edwards held a genuine but incorrect belief that she was Oscar's co-owner.

This case highlights the risks of sensationalist media coverage and the legal protections available for individuals targeted by unfair reporting. Perhaps more practically, it highlights how far things can escalate when strong emotions are involved.

An interesting postscript to this case is that that Ms Edwards ended up in a dispute over costs with her solicitors who ran her defamation case, leading to an order being made that Nine Network pay the damages into court rather than directly to Ms Edwards so that the solicitors would not be deprived of the benefits of their claimed equitable lien over the fruits of litigation.

Aurisch v Wilson - The French Bulldog breeder and allegations of puppy farming

Perhaps the strangest case of the lot is Aurisch v Wilson [2022] VCC 720 (Aurisch) which involved the plaintiff, Ms Aurisch, the owner of a French bulldog breeding business called Unique French Bulldogs, being accused of "puppy farming" by the defendant, Ms Wilson.

It should be pointed out that, in the context of dog breeding and owning, one of the worst things to be accused of is puppy farming. The RSPCA defines a puppy farm as an intensive breeding facility that is operated under inadequate conditions that fail to meet the dogs' behavioural, social and/or physiological needs. It is regarded as a major animal welfare issue in Australia. It is a very serious thing for a professional breeder and seller of dogs to be accused of puppy farming.

In a series of four posts across March and April 2020 on the Facebook page operated by Unique French Bulldogs which had some 53,000 followers, Ms Wilson accused Ms Aurisch of being a puppy farmer, that she engaged in illegal activities in respect of her puppies, that she operated a "stinking nursery" which "stunk of putrid urine and ammonia from the urine", and puppies she had bred had "poor dull coats, wormy bellies" and one looked "underfed and wormy".

Not surprisingly, these publications were found by the court to convey serious defamatory imputations about Ms Aurisch and Unique French Bulldogs. Ms Wilson pleaded defences of substantial truth (justification), qualified privilege and honest opinion. These defences were all unsuccessful as there was little to no evidence to support them (and , indeed, much evidence to the contrary) and it was found Ms Wilson had no reasonable basis for suspecting or believing any of the defamatory remarks she had published and not based on proper material.

The court awarded Ms Aurisch and her business damages of $115,000 (on a joint and several basis) which included aggravated damages of $15,000, plus interest and costs.

The greatest mystery in this matter was why Ms Wilson had made the publications at all. Judge Richard Smith remarked in his judgment:

"The evidence did not disclose the defendant was a competitor of the plaintiffs; did not disclose any prior hostility between the defendant and the plaintiffs; and did not disclose any prior dealings of any nature between the defendant and the plaintiffs. The reason, if any, for her publications remains a mystery."

On a Serious Note - the Evolution of Defamation Law

Since 2021, most Australian states and territories have introduced the serious harm element into defamation law, raising the threshold for plaintiffs to succeed in defamation claims. Under section 10A of the Defamation Act 2005 (Qld), an element of a cause of action for defamation is that a plaintiff must prove that the defamatory publication has caused, or is likely to cause, serious harm to their reputation. Previously, once it had been established that the publication had been made to others and conveyed defamatory imputations about the aggrieved then harm to reputation was deemed to result, unless the aggrieved person's reputation was already so bad that the publication could not be seen to have damaged it further.

There is a case with a canine connection that well illustrates the serious harm element and that it can be a very difficult hurdle to overcome, particularly where the publication was to a very small audience. Zimmermann v Perkiss [2022} NSWDC 448 (Zimmermann) was the first Australian decision on the serious harm element as a separate issue in a proceeding after the introduction of the serious harm amendments. The finding in that hearing that there was no serious harm to Ms Zimmermann's reputation suffered or likely to be suffered resulted in the proceeding being dismissed.

The publication the subject of the court case was a series of Facebook Messenger messages sent by Ms Kim Perkiss, an employee of a dog grooming salon called "Perky Pooches" (which was owned by Ms Perkiss' daughter) to Ms McPherson, the owner of a doggy day care called "Albion Bark Lodge" located in Albion Park (seriously). These messages concerned Ms Katie Zimmermann, a former employee of Perky Pooches who had found work with Albion Bark. The messages conveyed the defamatory imputations that Ms Zimmerman had left her employment with Perky Pooches in circumstances where she had stolen company property. These imputations were simply untrue, a fact which had been acknowledged by Ms Perkins' daughter the owner of Perky Pooches.

The messages were only sent to Ms McPherson, and the evidence that came out in the hearing was that Ms McPherson (due to her own concerns about republication) only disclosed the messages to her husband and to Ms Zimmermann's mother where no claim for publication and no harm arose. It was the evidence of Ms McPherson herself that was critical to the judge's finding of no serious harm. Ms McPherson gave evidence that the messages did cause her to have anger and suspicion, but that this was not directed at Ms Zimmermann but, rather, towards Ms Zimmermann's former employer, whom she suspected of lashing out because a good employee had been lost.

Given that there was no harm to Ms Zimmermann's reputation in Ms McPherson's eyes and that Ms McPherson was the only relevant person to whom the publication had been made it necessarily followed that the serious harm element had not been made out and the proceeding must be dismissed.

One should also be mindful of the single publication rule under sections 10AA and 10AB of the Limitation of Actions Act 1974 (Qld) which provide that the one-year limitation period for bringing a defamation action begins when the material is first published, uploaded, or sent electronically - not when it is subsequently viewed or downloaded - unless the subsequent publication is materially different from the first publication. As such, if a publication is made on the internet (and therefore, is likely to be available to be accessed for a considerable period of time) then an aggrieved person will normally only have one year from the date of first publication to bring an action for defamation.

Key Takeaways

These cases demonstrate how social media and media reporting can escalate what are essentially private disputes over what most people would regard as relatively trivial matters into high-stakes and costly defamation actions. The serious harm element has added a new layer of complexity to defamation claims. Plaintiffs now face a higher bar for success, but when reputational harm can be proven - as in Edwards - the damages can be significant.

However, it is to be hoped that this article has provided some level of interest and amusement - and perhaps a little insight.

Need Help with Defamation?

Defamation law is complex and nuanced and great care must be taken before commencing a defamation action as the Munro case well illustrates. Bennett & Philp Lawyers have a wealth of experience in acting in defamation matters, including not a few that have had a canine flavour. We have acted for dog owners in actions involving dog breeders, for members of dog breed/owners clubs and for vets in defamation actions. Our furry friends can certainly give rise to intense feeling that can, unfortunately, end up in disputes.

Please do not hesitate to contact us if need any advice and assistance with defamation law.

Michael Coates, Director

Francis Joseph, Senior Associate

(co-authored with Jack Ryan, Solicitor)

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.