Defamation Law!

Have I hooked you yet? Probably.

To explain in the most basic form, the motivation behind defamation law is to prevent one from being discredited via false statements. It aims to maintain a balance between the right to free speech and ensuring one’s reputation is protected against harm.

Of course, in the world we currently live in, this balance can be quite difficult to strike. The difference between publicly shunning and publicly lying about a person becomes muddled very quickly, for all the defendant has to do is call ‘fair comment’. Another possible defence includes triviality – in which the defendant can prove that the accuser’s reputation was left unharmed. Naturally, the Defence of Truth is a big one, but particularly the Defence of Honest Opinion (all of which are taken directly from Justice Connect’s fact sheet on the topic). Rest assured for those in the public eye, these defences don’t work every time. 

The rise of social media has seemingly declared fair game on any and every celebrity – particularly politicians. Unfortunately for a few of the common folk, many celebrities have successfully fought against this notion. Peter Dutton’s defamation case has become a classic example of this in the political world. Despite Shane Brazzi’s ‘fair comment’ defence, he was rejected and forced to pay $35,000 in damages after referring to Dutton as a “rape apologist” on Twitter. 

However, despite the outcome, Justice Richard White still had this to say on the matter: “A sense of perspective does have to be brought to the assessment of the seriousness of defamation.” While he acknowledged that Brazzi’s statements were “no doubt” an example of “serious defamation”, he did not believe that Dutton was entitled to aggravated damages. His reasoning was that there was no evidence, or “suggestion” rather, that proved that Brazzi’s claims made any impact “in (Dutton’s) day-to-day political activities, or in his relationships with other people”.

The distinction made by Judge White is one that has become the main vocal point of most defamation lawsuits. Whether it overturns the verdict or not, the consideration of ‘serious harm’ has become a requirement in Australian law as of November 2019 (1). The debate between what is and what isn’t in the “public interest” has also been tossed around in recent years. 

Of course, there is a clear reason why these changes are being considered and implemented. The rise of social media and internet journalism have so far succeeded in stretching the line between defamation and freedom of speech, leaving the original laws surrounding the former outdated. There are countless, day-to-day examples that one could argue triggered the recent updates, though I doubt one would have to look much further after reviewing the Rebel Wilson Vs Bauer Media case.

For the few who didn’t hear, or don’t affiliate with the internet, let me take you on a journey. Back in May 2015, Bauer Media Group released a series of articles in which they branded actress Rebel Wilson a “serial liar” (2). They implied that the reason Wilson has found success in Hollywood is due to her lying about “many aspects of her private life”. 

Wilson responded to the articles by suing all eight of them two years later, leading to the most high-profile defamation lawsuit in the history of Australia. During the trial, she likened the articles to that of a “malicious, deliberate take-down” (3). She alleged that she was fired from two DreamWorks projects as a direct result of the articles – “all of a sudden doors that used to be open were shut and I basically had to beg to get back in the door”. She sought to prove her truthfulness by claiming that the articles had negatively affected her career. 

Bauer Media’s line of defence consisted of a variety of angles, wavering from triviality, substantive truth, and even statutory qualified privilege. One of their more significant angles was their attempt to refute the losses she claimed to have suffered. In June 2017, defence barrister Georgina Schoff claimed that Wilson was not entitled to her $5.893m special damages claim because ‘she had failed to prove the publications caused her loss’ (4). During a hearing, she claimed that there was not “one scrap of paper” that proved a connection between their articles and Wilson’s firing from the films Kung Fu Panda 3 and Trolls. “Her career has really not skipped a beat; there’s no actual evidence of damage being done to her”.

In the end, their defence was rejected. The jury verdict found itself overwhelmingly in favour of Wilson. Her legal team highlighted the orchestrated manner of the articles’ release (over the course of merely three days) and the gravity of the implications. They also made note of Wilson’s feelings being affected. Justice John Dixon awarded Wilson over $4.5 million in damages: $3.9 million of said damages consisted of economic loss. To this day, it remains the most significant defamation payout in the history of Australian law by a wide margin. Wilson’s lawyer Richard Leder claimed it to be “about four times the highest previous verdict in a defamation case in Australia” (3). Wilson herself commented: “I’m very glad that the jury has agreed with me and by their unanimous overwhelming verdict they have sent a very, very clear message”.

So how does this tale connect to the bigger picture? Well, judging from the significantly large damage cost, along with the wide global reach the trial endured, it’s safe to say that defamation cases have suddenly been taken more seriously. Despite the appeal that occurred the following year, changes to the system still went underway – as was alluded to earlier. Wilson’s emphasis on the economic loss the articles caused her – highlighted by her incredibly high damage sum – has set a precedent. This is evidenced by Geoffrey Rush’s major court victory, which occurred only a few years later. Rebel Wilson has effectively set an incentive that was once reserved to compensate for non-economic loss. The weight carried by the ‘serious harm’ argument has been amplified thanks to Wilson’s efforts in defending herself – leading only to more high profile defamation cases and significant reform.

Defamation lawsuits just got a lot more serious (at least for celebrities) (screw the general public).

Sources/Reference List

AAP. 2018. “Rebel Wilson to take defamation appeal to Australia’s high court.” The Guardian 12 July.  https://www.theguardian.com/film/2018/jul/12/rebel-wilson-to-take-defamation-appeal-to-australias-high-court

AAP-SBS. 2018. “Rebel Wilson loses 90 per cent of $4.7m defamation payout”SBS News 28 June.  https://www.sbs.com.au/news/rebel-wilson-loses-90-per-cent-of-4-7m-defamation-payout

(4) Australian Associated Press. 2017. “Rebel Wilson’s $7m damages claim should be thrown out, Bauer Media says” The Guardian, 22 Jun https://www.theguardian.com/film/2017/jun/22/rebel-wilson-7m-damages-claim-extraordinarily-large-says-bauer-media

Byrne, E. 2018. “Rebel Wilson’s legal battle ends as High Court rejects appeal over defamation payout.” ABC News 6 November. https://www.abc.net.au/news/2018-11-16/rebel-wilson-loses-high-court-bid/10503644

Clift, B. 2021. “Why defamation suits in Australia are so ubiquitous — and difficult to defend for media organisations” The Conversation 15 March. https://theconversation.com/why-defamation-suits-in-australia-are-so-ubiquitous-and-difficult-to-defend-for-media-organisations-157143

Dawson, S. 2018. “Rebel Wilson’s High Court defamation bid fails, bringing Wilson v Bauer to an end” Bird and Bird LLP 30 November https://www.lexology.com/library/detail.aspx?g=764dacfc-246c-4e79-a253-d8b00442c870

(1) Douglas, M. 2020. “Australia’s ‘outdated’ defamation laws are changing – but there’s no ‘revolution’ yet”, The Conversation 28 Jul https://theconversation.com/australias-outdated-defamation-laws-are-changing-but-theres-no-revolution-yet-143532

Mitchell, G. 2021. “Peter Dutton wins defamation case against refugee advocate Shane Bazzi” The Sydney Morning Herald 24 Nov https://www.smh.com.au/national/peter-dutton-wins-defamation-case-against-refugee-advocate-shane-bazzi-20211124-p59bn6.html

Rolph, D & Douglas, M. 2017. “Rebel Wilson’s $4.5 million win a sobering reminder that defaming a celebrity can be costly” The Conversation, 14 Sep https://theconversation.com/rebel-wilsons-4-5-million-win-a-sobering-reminder-that-defaming-a-celebrity-can-be-costly-83968

Supreme Court of Victoria, “2017. WILSON V BAUER MEDIA PTY LTD [2017] VSC 521”, Sep  https://www.supremecourt.vic.gov.au/court-decisions/judgments-and-sentences/judgment-summaries/wilson-v-bauer-media-pty-ltd-2017-vsc

(2) Supreme Court Of Victoria. 2018. “BAUER MEDIA PTY LTD V WILSON [NO.2] [2018] VSCA 154”, June https://www.supremecourt.vic.gov.au/court-decisions/judgments-and-sentences/judgment-summaries/bauer-media-pty-ltd-v-wilson-no2-2018-1

Whitbourn, M. 2022. “Peter Dutton, political defamation and the rise of social media lawsuits” The Sydney Morning Herald, 1 Jan https://www.smh.com.au/national/peter-dutton-political-defamation-and-the-rise-of-social-media-lawsuits-20211213-p59h9f.html

(3) Younger, E. 2017 “Rebel Wilson wins defamation case against ‘bully’ magazine publisher Bauer Media” ABC, 15 Jun  https://www.abc.net.au/news/2017-06-15/rebel-wilson-wins-defamation-case-against-bauer-media/8609670?nw=0&r=Gallery

2016. “Defamation Law: Information Sheet” Arts + Law http://www.artslaw.com.au/images/uploads/Defamation_law_(REPLACES_BOTH_PRE_AND_POST_2006_VERSIONS)_.pdf

2018. “Rebel Wilson ordered to repay millions in defamation case” BBC News, 27 Jun  https://www.bbc.com/news/world-australia-44625076

2022. “Understanding defamation laws” justice connect, 3 Mar https://www.nfplaw.org.au/free-resources/advertising/understanding-defamation-laws