It is something of a persistent myth that authors can hide behind pseudonyms and publish defamatory statements with impunity.  If, as demonstrated in Colagrande v Kim [2022] FCA 409 a plaintiff is determined enough there is high probability of obtaining sufficient information to identify the author and convince a court that that person is the correct defendant in a subsequent defamation proceeding. Jagot J ordered a very significant award against the respondents. FACTS Dr Colagrande (“Colagrande”) a Australian trained doctor who is highly qualified: in 1999 completing a training Fellowsh ..read more

The Defamation Act 2005 was due for a review in 2010.  Five years late the Council of Attorney Generals released, late last week a Model Defamation amendment.  The consolidated Act, if the amendments are implemented, are found here.  The New South Wales Attorney General has taken the lead in drafting the Bill.  That is not surprising given that the vast majority of defamation proceedings are issued in New South Wales. Submissions close on Friday 24 January 2020. The Background paper highlights the key amendments as, at page 4: Introducing a serious harm threshold to requir ..read more

The High Court in Trkulja v Google LLC [2018] HCA 25 upheld an appeal from the Victorian Court of Appeal regarding a summary judgment application. It is a very significant decision in relation to pleading the of defamation when the imputations arise from search engine results. FACTS While not enamoured of the drafting the Court noted that the Appellant’s (Trkulja”) Amended Statement of Claim was  sufficiently comprehensible to convey that Trkulja alleged that: Google defamed him by publishing images which convey imputations that he: “is a hardened and serious criminal in Melbourne ..read more

In the Victorian Government Gazette S314 Friday 24 June 2022 the Attorney General made a declaration under section 35(3) of the Defamation Act 2005 to increase the maximum non economic loss damages to $443,00. The declaration states: Defamation Act 2005 DECLARATION UNDER SECTION 35(3) I, Jaclyn Symes, Attorney-General, being the Minister for the time being administering the Defamation Act 2005, hereby declare in accordance with section 35(3) of the Defamation Act 2005 that on and from 1 July 2022 the maximum damages amount that may be awarded for non-economic loss in defamation proceedings is ..read more

Justice John Dixon has provided a very valuable judgment in Agustin-Bunch v Smith (No 2) [2022] VSC 290 providing a very useful and detailed analysis of how to plead, and more particualrly how not to plead defences.  It ended up being a bad day at the office for the defendants. FACTS The plaintiffs by writ seeks: damages, a permanent injunction restraining the defendants from publishing certain material, and a mandatory injunction for the removal of certain publications from the internet that they allege are defamatory [1]. The second plaintiff seeks damages pursuant to s 236 of the Aus ..read more

The Federal Court, per Rares J, found for John Barilaro in Barilaro v Google LLC [2022] FCA 650 for defamation by means of posts on YouTube and awarded him $715,000. FACTS The publications complained of were two YouTube videos prepared by a Mr Shanks: bruz, first uploaded on 14 September 2020.  The contents are described in great detail at [33] – [63]; and Secret Dictatorship, first uploaded on 21 October 2020 [3].  It is described in great detail at [81] – [91] The imputations pleaded in bruz video was that: (a) Mr Barilaro is a corrupt conman; (b) Mr Barilaro committed perjury ni ..read more

The Full Bench of the High Court heard argument in Google LLC v Defteros [2022].  It is a case of considerable interest to defamation practitioners.  The key issue is whether a search engine a publisher of defamatory material on a third party website to which that search engine provides a hyperlink when the search result on its own conveys no defamatory imputation.  Also Google seeks a ruling on what is required to notify the search engine of defamatory publication for the purposes of the common law doctrine of innocent dissemination and the statutory defence under section 32 of ..read more

The Prime Minister today foreshadowed legislation to unmask online trolls and amend the law of defamation in response to the High Court decision in Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27.  The necessary bills will be released in the next week.  A mid morning media release on a Sunday, usually a slow news day where editors fret on what will fill the front page the next day, guarantees big coverage on Monday. Extracting the reforms from the media release the changes will involve: legisla ..read more

It is something of an understatement that the last few years have been busy in the defamation space.  And generally uncomfortable for the defendants with big awards in the Rebel Wilson (after reduction by the Court of Appeal) and Chris Gale cases.  As significantly has been the proliferation of cases arising out of commentary on line, often through social media.  Another interesting development is the growing preference for plaintiffs to issue proceedings in the Federal Court rather than in the state courts.  This obviates the need for a jury trial, often times a comfort fo ..read more

It was always on the cards that Bauer Media would appeal its loss in Wilson v Bauer Media Pty Ltd [2017] VSC 521. And today Bauer Media announced that it was appealing the quantum of the damages.  Just inside the time limit to file an appeal. It is reported by the ABC, the Australian, NineMSN and Sky News. It was a record payout but that does not mean much in and of itself.  A large part of the award was special damages, economic loss, which is not common in defamation cases.  There are issues of  aggravated damages which while a reasonably settled area of law in Australia ..read more