Armstrong v Assatryan
[2023] VCC 7
•30 March 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Defamation List |
Case No. Cl-21-01623
| KHURAMAN ARMSTRONG | Plaintiff |
| v | |
| YULIA ASSATRYAN | First Defendant |
| and | |
| ANNA GABRIELYAN | Second Defendant |
| and | |
| KATYA KAHRAMANIAN | Fifth Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8, 9 and 10 November 2022 | |
DATE OF JUDGMENT: | 30 March 2023 | |
CASE MAY BE CITED AS: | Armstrong v Assatryan & Ors | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 7 | |
REASONS FOR JUDGMENT
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Subject:DEFAMATION
Catchwords: Defamation – Injurious falsehood – Publications on Facebook – Conflict between Armenia and Azerbaijan – Grapevine effect – Defence of truth – Offer to make amends – Defence of fair comment and honest opinion – Defence of qualified privilege – Defence of reply to attack – Defence of triviality – Damages – Non-pecuniary loss – Medical expenses – Business losses – Mitigation – Apology – Settlement of other claims – Republication by plaintiff – Aggravation
Legislation Cited: Defamation Act 2005, s18, s25, s30, s31, s38
Cases Cited: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33; Morgan v Odhams Press Ltd [1971] 1 WLR 1239; Charan v Nationwide News Pty Ltd [2018] VSC 3; Charan v Nationwide News Pty Ltd [2019] VSCA 36; Zoef v Nationwide News Pty Ltd [2016] NSWCA 283; Wilson v Bauer Media Pty Ltd [2017] VSC 521; Belbin & Ors v Lower Murray Urban and Rural Water Corporation [2012] VSC 535; Lower Murray Urban and Rural Water Corporation v Di Masi; Lower Murray Urban and Rural Water Corporation v Belbin; Lower Murray Urban and Rural Water Corporation v Marciano (2014) 43 VR 348; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 34; Uren v John Fairfax & Sons Pty Ltd (1965) 66 SR (NSW) 223; Thompson v Australian Capital Television Pty Ltd & Ors (1997) 129 ACTR 14; Wagner & Ors v Harbour Radio Pty Ltd & Ors [2018] QSC 201; Praed v Graham (1889) 24 QBD 53; Broome v Cassell & Co Ltd [1972] AC 1027; Cerutti & Anor v Crestside Pty Ltd & Anor [2014] QCA 33; Triggell v Pheeney (1951) 82 CLR 497; Polias v Ryall [2014] NSWSC 1692; Sierocki v Klerck (No 2) [2015] QSC 92; Graham v Powell (No 4) [2014] NSWSC 1319
Judgment: Judgment for the plaintiff against the first, second and fifth defendants.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms P Wakhlu | Australian Law Partners |
| For the First Defendant | The first defendant appeared in person | - |
| For the Second Defendant | No appearance | - |
| For the Fifth Defendant | No appearance | - |
HER HONOUR:
Introduction
1Mrs Armstrong sells chocolate online through her business ‘Enjoy Dark Chocolate’. She promotes her business through her ‘Khuraman Armstrong’ Facebook page (“plaintiff’s business page”) and ‘Kay Abdullayeva’ Facebook page (“plaintiff’s personal Facebook page”).
2She sues the defendant, Mrs Assatryan, for defamation and injurious falsehood over six posts in July and October 2020 on those Facebook pages, and one on another site “Russian Women’s Network Facebook Page”.
3Mrs Armstrong says Mrs Assatryan has never been a customer of her chocolate business and made the comments maliciously and to cause damage, and as a result she has suffered harm to her reputation, psychological injury, and significant financial loss.
4Mrs Assatryan denies the comments carry the imputations pleaded, but says if they do, she has available a number of defences:
(a) offer to make amends;
(b) truth or contextual truth;
(c) fair comment and honest opinion;
(d) qualified privilege (Lange defence[1] and reply-to-attack);
(e) triviality.
[1]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
5She also says Mrs Armstrong has failed to mitigate her own loss.
6The issues in this case are:
(a) whether the posts carry the pleaded imputations;
(b) whether, in the particular context in which they were published, the imputations would lower Mrs Armstrong’s reputation amongst reasonable members of the community;
(c) whether Mrs Assatryan can make out any defence;
(d) whether, if the publications are defamatory, they have caused the business loss and other pecuniary loss claimed, or, in the alternative, whether Mrs Armstrong has made out a claim in injurious falsehood arising from false statements by Mrs Assatryan;
(e) in what sum should damages be assessed.
7For the reasons that follow I am satisfied:
(a) the posts carry the pleaded imputations and are defamatory of Mrs Armstrong.
(b) Mrs Assatryan has not made out any defence.
(c) Mrs Armstrong has not made out her claim in injurious falsehood.
(d) Mrs Armstrong has not established that Mrs Assatryan’s posts caused her business loss or other pecuniary loss, and has not established the posts were the cause of her psychiatric condition.
(e) Mrs Assatryan must pay Mrs Armstrong damages for defamation in the sum of $70,000 which includes aggravated damages.
8Mrs Armstrong also sued a number of other people, and settled some of those claims.
9Judgment was entered against the second defendant, Ms Anna Gabrielyan, on 18 October 2022, with damages to be assessed. Judgment was entered against the fifth defendant, Ms Katya Kahramanian, on 18 October 2022, with damages to be assessed.
10For the reasons that follow, Ms Gabrielyan is ordered to pay Mrs Armstrong the sum of $25,000 and Ms Kahramanian is ordered to pay Mrs Armstrong the sum of $30,000.
Background
11Mrs Armstrong was born in Azerbaijan, a former republic of the Soviet Union.
12Mrs Armstrong met her first husband, an Australian, in 2003. She moved with him to Brisbane in 2005 and became an Australian citizen in 2009.
13Mrs Armstrong worked in various occupations and moved to Melbourne in 2013, where she registered “Enjoy Dark Chocolate” in 2015.
14In 2017, she left her job to work full time in her chocolate business. She was not a chocolatier herself and relied on hiring professional chocolatiers to make her product. She concentrated on product development, marketing and distribution.
15Mrs Armstrong’s businesses and marketing are primarily targeted at the Russian-speaking community.
16Mrs Armstrong had an active social media presence on the “Russian Women’s Network Melbourne” Facebook group.
17She also created and managed a Facebook group titled “Global Storytellers Meetup Group” in August 2020. She says the goal of the group was “online networking and business promotion, and also supporting people from different cultural backgrounds”.[2]
[2]Joint Court Book (“JCB”) 113
18Mrs Assatryan is from an Armenian background. She represented herself at trial, with her daughter acting as a McKenzie friend.
19In October 2018, Mrs Armstrong began selling a chocolate she had created which she named “Echoes of Shusha”. Her grandfather was from the city of Shusha, in the Nagorno-Karabakh region. The Nagorno-Karabakh region has been disputed territory between Azerbaijan and Armenia for many hundreds of years. On occasion that dispute has given rise to war between those countries. In mid-2020 the dispute once again escalated to armed conflict between Azerbaijan and Armenia. Both sides suffered military and civilian casualties. Parts of the region which had been under Armenian control since the 1990s came under the control of Azerbaijan as a result of this conflict. It was in the context of this armed conflict that most of the posts were published.
20Mrs Armstrong says she decided to call her chocolate “Echoes of Shusha”:
“… not as a political statement about the continuing occupation of the region, but based on my own childhood memories of the stunning landscapes of this region, where my family was from, and which combined rolling green hills and terracotta rooftops, reflecting the colours of my new chocolate creation.”[3]
[3]JCB 114
21Mrs Armstrong was featured on an episode of an online television program “Russian Influence” (now known as “Foreign Influence”), where she says she discussed Azerbaijani cooking and culture and her chocolate business.
22On 23 July 2020, Ms Elina Reddy, the producer of the television program, posted a trailer promoting the upcoming episode on the “Russian Women’s Network Melbourne” Facebook group. The episode was aired on Russian Influence’s YouTube Channel and on Channel 31 in Melbourne and Geelong on 27 July 2020, and on Foxtel Aurora on 26 August 2020.
The publications
23In July 2020, Mrs Assatryan posted a comment in response to Ms Reddy’s post on the Russian Women’s Network Facebook page, saying that Mrs Armstrong’s chocolates are “full of poison and crime”.[4]
[4]JCB 47, FASOC 3(a)
24In October 2020, Mrs Assatryan published four comments in reply to posts on the plaintiff’s personal Facebook page. These included the following statements:
(a) Mrs Armstrong should “stop mediating and supporting international terrorism” and “be in jail for inciting ethnic hatred and nationalist attacks!”;[5]
(b) Mrs Armstrong “is an open criminal person”, and “poisons our Australian citizens with expired products which causes allergy and indigestion” and “deliberately makes these chocolates to harm our beautiful Australia!”;[6]
(c) Mrs Armstrong “poison[s] people” and is a “criminal and international terrorist!”;[7] and
(d) Mrs Armstrong’s intentions are “nationalism and international terrorise!” [sic], and that “chocolate has nothing to do with her source of living!”.[8]
[5]JCB 41, FASOC 2(b)
[6]JCB 42, FASOC 2(e)
[7]JCB 43, FASOC 2(f)
[8]JCB 44, FASOC 2(g)
25Ms Assatryan posted two comments in response to recommendations made on the plaintiff’s business page. In response to the recommendation of Elena Sperring posted on 7 October 2020, Mrs Assatryan posted that Mrs Armstrong “uses her chocolate for political reasons” and “poisons people” with “awful”, “expired” and poisonous chocolates.[9] In response to a review of Alexia Beau posted in October 2020, Mrs Assatryan posted that Mrs Armstrong is a “terrible person” and “will be jailed as an international terrorist!”.[10]
[9]JCB 45, FASOC 3(a)
[10]JCB 46, FASOC 3(b)
Are the pleaded imputations conveyed by the publications?
26Mrs Armstrong pleads the publications conveyed that she:
(a) is a terrible person;
(b) is a criminal;
(c) is an international terrorist;
(d) sells chocolates as a front for international terrorism;
(e) is a liar;
(f) sells poisonous chocolates;
(g) sells chocolates that cause allergies and indigestion;
(h) sells her chocolates for the purpose of poisoning people; and/or
(i) sells expired products.
27The principles in relation to whether the imputations are conveyed are well settled. The question is whether an ordinary reasonable reader would understand the matters complained of in the defamatory sense pleaded.[11] An ordinary reasonable reader is one who draws inferences and conclusions and may engage in a certain amount of ‘loose thinking’.[12] They are not lawyers and do not look for hidden meanings, or adopt a strained interpretation. They have ordinary intelligence, experience and education and are not suspicious or avid for scandal. The ordinary reader does not look at the matter complained of in isolation but considers the whole context.
[11]Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33 at 49-50, paragraphs [63]-[65]
[12] Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245
28I must consider the sting of the publication in the eye of the reasonable reader of the publications and avoid the “trap of parsing and analysing each sentence or paragraph”[13] to see whether the publication as a whole conveyed the alleged imputations.
[13] Charan v Nationwide News Pty Ltd [2018] VSC 3 at paragraph [35]
29Ms Assatryan denies that any of the imputations were conveyed, apart from the imputation that Mrs Armstrong is a liar.
30In her posts Mrs Assatryan says that Mrs Armstrong is an “open criminal person”. I take this to mean Mrs Armstrong is ‘openly’ criminal . Mrs Assatryan says Mrs Armstrong is an international terrorist who incites ethnic hatred and nationalist attacks. Both those statements would, in the eyes of an ordinary reasonable reader, convey an imputation that Mrs Armstrong is a terrible person.
31The words “chocolate has nothing to do with her source of living” carry an implication that she has some other source of income. It comes after a statement that her real intention is nationalism and international terrorism. Viewed in the context of the publication as a whole with the comments that Mrs Armstrong is a criminal and an international terrorist and followed by a comment that Mrs Armstrong uses her chocolate for political purposes, a reasonable reader would infer that the chocolate business is a front for international terrorism.
32The imputation that Mrs Armstrong is a liar is not in dispute. The other imputations which disparage her chocolates are clearly made out on the face of the words published.
33Therefore, I am satisfied that the imputations as pleaded arising from the first defendant’s publications are conveyed.
Are the meanings conveyed defamatory?
34The next question is whether any of those imputations are defamatory. Words are defamatory when the imputation lowers the person’s reputation in the eyes of reasonable members of the community, or causes the person to be ridiculed, shunned or avoided by members of the general public.[14]
[14]Charan v Nationwide News Pty Ltd [2018] VSC 3 (upheld on appeal in Charan v Nationwide News Pty Ltd [2019] VSCA 36)
35Ms Assatryan admitted that, other than the imputation that Mrs Armstrong is a liar, the imputations were untrue. She did not submit that the imputations were not defamatory, and it is plain that the imputations are defamatory, in that they would tend to hold up the plaintiff to hatred and ridicule and lower her reputation in the eyes of her peers.
Has Mrs Assatryan made out any defence?
Truth
36The first defendant relies on a defence of justification pursuant to s25 of the Defamation Act 2005 and at common law.
Was the imputation that Mrs Armstrong is a liar true?
37Mrs Assatryan says the imputation that Mrs Armstrong is a liar is true because Mrs Armstrong says she is not political, but her posts were, in fact, political. She points to the following:
(a) In a post on her Enjoy Dark Chocolate Facebook page on 17 October 2020, Mrs Armstrong refers to her “peaceful and non-political personal and business Facebook pages”.
(b) Her post on 10 October 2020 on the Enjoy Dark Chocolate Facebook page says:
“At the time I launched my chocolate I avoided any direct reference to the fact that Shusha, along with 20% of Azerbaijan, has been under illegal occupation of Armenia for almost 30 years.
….
… the dedication of my chocolate reflected the deep connection Azerbaijanis still feel for their lands and the collective hurt that this unresolved occupation causes our country.
I share this today, not to comment directly on the current war to liberate Azerbaijani lands, but rather to acknowledge the hurt that all unresolved occupation causes the rightful traditional owners of all occupied lands.”[15]
(c) Mrs Armstrong included hashtags at the bottom of her post:
“#Shusha #KarabakhisAzerbaijan #enjoydarkchocolate #azerbaijan.”
[15]JCB 77
38Mrs Assatryan says references to “occupation” and the hashtag “#KarabakhisAzerbaijan” are inherently political statements in the context of an ongoing dispute between Armenia and Azerbaijan.
39Mrs Assatryan says the hashtags used by Mrs Armstrong would, if clicked on by a reader, lead to anti-Armenian websites. These hashtags show that Mrs Armstrong “entered the fray” and she cannot maintain a claim that her pages are non-political and peaceful. To say she is non-political and peaceful is false and renders Mrs Armstrong a liar.
40Mrs Armstrong disputed, at trial, that the statement “Karabakh is Azerbaijan” is a political statement, because, she said, Karabakh is Azerbaijan. Mrs Armstrong pointed to United Nations’ declarations in relation to the region to support her position. She said her comments were both diplomatic and non-confrontational.
41Mrs Assatryan says this demonstrates the political nature of Mrs Armstrong’s statements, as the region is hotly contested and has been hotly contested for hundreds of years. Any assertion of sovereignty is an inherently political statement and cannot be considered simply a statement of fact.
42Mrs Assatryan also relied on the content of the television program featuring Mrs Armstrong. In that program, Mrs Armstrong spoke about the food and culture of Azerbaijan. During that program, a map of Azerbaijan was shown which showed the disputed Nagorno-Karabakh region labelled “occupied territory”. Mrs Assatryan says this is a political statement. Mrs Armstrong says the map was a United Nations’ map.
43It is common ground between the parties that the issue of Nagorno-Karabakh is sensitive. It is not difficult to understand why saying “Karabakh is Azerbaijan” would be considered by Mrs Assatryan to be a political statement or why Mrs Armstrong’s reference to “their lands” when promoting her Echoes of Shusha chocolate would be considered inflammatory by some.
44It is also not difficult to understand why Mrs Armstrong would consider those statements to be factual and uncontroversial. One can think of numerous examples where one person’s statement of “simple fact” is another person’s hotly contested and controversial view.
45I do not accept that a person who holds a controversial opinion, or expresses a political view, but denies that such an opinion is controversial, or such view is political, is necessarily a liar. A liar must be someone who does more than say something with which other people do not agree or which others consider to be false.
46A liar is more, even, than someone who is found to have spoken a mistruth. There must be an intent to mislead or deceive. Inadvertent mistruths or differing ideas about what words mean does not amount to lying.
47Mrs Armstrong may have been naive in thinking her views about Nagorno-Karabakh were simple statements of fact. Mrs Armstrong may even be disingenuous in maintaining that her position is not in any way political. Possibly the echo chambers in which we all now tend to operate, particularly online, caused her to genuinely believe that, in the period immediately before and during an armed conflict, such views were not political statements. Likely her belief that she was non-political and peaceful represented wishful thinking.
48However, naivety, disingenuousness or wishful thinking are not the same as deception, or intent to mislead.
49There is nothing in the evidence that leads me to conclude that Mrs Armstrong is a liar.
50Therefore, the defence of truth in relation to the imputation that Mrs Armstrong is a liar is not made out.
Did the posts carry a contextual imputation which was substantially true?
51It is a defence to the publication of defamatory matter if the defendant proves that the matter carried one or more imputations that are substantially true (the contextual imputations) and the defamatory imputations of which the plaintiff complains do no further harm to the plaintiff’s reputation because of the substantial truth of the contextual imputations.
52Mrs Assatryan says her comments carried the contextual implication that the plaintiff was promoting an aggressor country, Azerbaijan, and that contextual imputation was substantially true. By reason of the substantial truth of the contextual imputation, each of the imputations pleaded by the plaintiff and found to be defamatory do not further harm her reputation.
53Mrs Assatryan says that Mrs Armstrong posted comments and a video after 27 September 2020 which were all “strongly supportive of and promoting the position of Azerbaijan which, on 27 September 2020 had launched an aggressive military offensive into Armenian occupied territory”. She pleads that reports at the time included “fears that … Azerbaijan would attempt to ethnically cleanse the Nagorno-Karabakh of ethnic Armenians, thus increasing the seriousness of the contextual imputation”.
54No submissions were advanced in support of this pleading. It is not apparent how Mrs Assatryan argues that the comments carried the contextual imputations pleaded.
55Doing the best I can, I understand the defence to be that, by saying “Karabakh is Azerbaijan”, and by using the words “occupied” in relation to Armenian control of the region, Mrs Armstrong was supporting Azerbaijan in the conflict. From Mrs Assatryan’s perspective, Azerbaijan was the “aggressor” in the 2020 conflict and therefore Mrs Armstrong was promoting an aggressor country.
56To find that the imputations were substantially true, it would be necessary to:
(a) accept that Azerbaijan was an aggressor country; and
(b) Mrs Armstrong’s statements were promoting an aggressor country; and
(c) the comments posted by Mrs Assatryan carried imputations that Mrs Armstrong was promoting an aggressor country.
57It is not necessary to make these findings because, even if it is correct that the imputations conveyed a meaning that Mrs Armstrong promoted an aggressor country, this cannot be said to do no further harm to her reputation.
58Imputations that she is a criminal, a terrorist and sells poisonous chocolate are clearly more serious than an imputation that she “promotes an aggressor country” which is vague, ill-defined and would not necessarily carry a defamatory meaning.
59In any event, I do not accept that the imputations pleaded carry a contextual imputation that Mrs Armstrong promotes an aggressor country. Four of the posts relate to the chocolate Mrs Armstrong sells. Two of the posts relate to personal characteristics (that she is a terrible person and a liar) and two relate to terrorist activity. None of these imputations could be said to carry the contextual meaning pleaded.
60Therefore, the defence of contextual truth is not made out.
Was the offer of amends reasonable in all the circumstances?
61Section 18 of the Defamation Act, at the relevant time provided:[16]
[16] This section has subsequently been amended
“Effect of failure to accept reasonable offer to make amends
(1) If an offer to make amends is made in relation to the matter in question but is not accepted, it is a defence to an action for defamation against the publisher in relation to the matter if—
(a) the publisher made the offer as soon as practicable after becoming aware that the matter is or may be defamatory; and
(b) at any time before the trial the publisher was ready and willing, on acceptance of the offer by the aggrieved person, to carry out the terms of the offer; and
(c) in all the circumstances the offer was reasonable.
(2) In determining whether an offer to make amends is reasonable, a court—
(a) must have regard to any correction or apology published before any trial arising out of the matter in question, including the extent to which the correction or apology is brought to the attention of the audience of the matter in question taking into account—
(i) the prominence given to the correction or apology as published in comparison to the prominence given to the matter in question as published; and
(ii) the period that elapses between publication of the matter in question and publication of the correction or apology; and
(b) may have regard to—
(i) whether the aggrieved person refused to accept an offer that was limited to any particular defamatory imputations because the aggrieved person did not agree with the publisher about the imputations that the matter in question carried; and
(ii) any other matter that the court considers relevant.”
62Ms Assatryan says she first became aware of the proceeding when served with the writ on 23 April 2021. She was not provided with a concerns notice. She made an offer of amends on 8 June 2021, and further offers on 2 August 2021 and 30 May 2022. She filed her defence on 9 June 2021 and therefore the first offer on 8 June 2021 is the only offer relevant to the defence.
63The offer of amends on 8 June 2021 was to publish a correction, an apology and pay “expenses reasonably incurred” relating only to the claim against Mrs Assatryan. No sum of money for expenses was specified.
64Ms Assatryan says the offer was a reasonable offer in all the circumstances, which include:
(a) that her comments were directed at political comments by Mrs Armstrong, and plainly related to her political position, not to her chocolate;
(b) that the comments were published on Facebook pages primarily frequented by Russian speakers who would have familiarity with the issues as between Armenia and Azerbaijan and would likely have entrenched views about the issue;
(c) that Mrs Armstrong made comments and used hashtags that were inflammatory to Armenian people, and linked to anti-Armenian pages, at a very sensitive time; and
(d) the fact that Mrs Assatryan had a number of defences available to her including honest opinion and privilege defences.
65Mrs Assatryan also says the offer was reasonable, having regard to her own circumstances as a pensioner with no income or assets. The financial component of the offer was to be paid by her daughters who are young women of limited means, and she had no capacity to make a higher offer.
66Mrs Armstrong says this offer was not reasonable. The offer did not include compensation for any loss she had suffered. In any event, the amount offered was inadequate.
67Zoef Nationwide News Pty Ltd[17] establishes that the adequacy of the monetary offer is not to be judged by reference to the range of damages that the plaintiff would receive at trial but is to be informed by the seriousness of the defamation and the other components of the offer, including any apology, and the fact that acceptance of it would have made amends and obviated the need for a trial, and the risks of the proceeding being successful, taking into account the defences raised by the defendant.
[17][2016] NSWCA 283 at paragraph [74]
68The imputations conveyed were of serious criminal conduct. The financial component of the offer did not include any offer of compensation. Had the offer made any provision for compensation it may have amounted to a reasonable offer which might then have given rise to a defence. However the absence of any compensatory element to the offer means it falls short of being a reasonable offer in all the circumstances.
69It therefore it does not constitute a defence.
Fair comment and honest opinion
70The elements of the defence of fair comment are:
(a) that the comment must be recognisable as an expression of comment and not a statement of fact;
(b) the comment must be based on fact, truly stated or referred to in the matter complained of or in other proper material;
(c) the comment must relate to a matter of public interest; and
(d) the comment must satisfy the test that a fair-minded person could honestly express that opinion on the proved facts.[18]
[18]Defamation Law in Australia (3rd edition), Patrick George, page 506
71Ms Assatryan says her comments were an expression of opinion which related to a matter of public interest, and she is entitled to a defence of fair comment at common law and honest opinion pursuant to s31 of the Defamation Act.
72In support of her defence, Mrs Assatryan pleads that Mrs Armstrong had made political comments that contained lies. In the television program, she lied about the origins of Gata Karabakh Kata, which Mrs Assatryan pleads is an Armenian dish. This amounts to stealing Armenian recipes which is both a political act and a matter of public interest.
73However, the comment or opinion must be based on facts truly stated and must satisfy the objective test.
74Ms Assatryan’s publications do not satisfy either of these requirements. The facts do not support her forming the opinion that Mrs Armstrong is a criminal, an international terrorist or runs her business as a front for international terrorism. Mrs Assatryan has never been a customer of Mrs Armstrong’s and there is no basis upon which she could form an honest opinion about the quality of chocolates Mrs Armstrong sells.
75The cases recognise that an opinion may be exaggerated, biased, prejudiced or wrong.
76However, the evidence in this case does not support a finding that Mrs Assatryan held an honest opinion that Mrs Armstrong was a criminal or a terrorist. Mrs Assatryan conceded that she did not consider Mrs Armstrong was a criminal or terrorist. Mrs Assatryan says her comments were clearly aimed at Mrs Armstrong’s political opinions and not her chocolates, but she directed comments specifically to the quality of Mrs Armstrong’s chocolate. A fair-minded person could not honestly express the opinions in the publications.
77The defences of fair comment or honest opinion fail.
Privilege
78Ms Assatryan also pleads defences of qualified privilege. She says her publications were of and concerning government and political matters and were reasonable in the circumstances. In her defence she pleads that the fact that the subject concerned government and political matters relevant to Australians can be inferred from speeches of Australian politicians Paul Fletcher and Trent Zimmerman at the time.
79Ms Assatryan says, in the alternative, they were published on an occasion of privilege as a reply-to-attack as Mrs Armstrong was attacking Armenia and Armenians such as herself.
80Finally, she pleads defences of common law and statutory qualified privilege under s30 of the Defamation Act.
81Ms Assatryan made no submissions and put no evidence in relation to any of these defences.
Were the matters complained of comments in relation to a government or political matter?
82It is not clear how Mrs Assatryan says her comments were in the furtherance of a government or political matter. The fact that people within Australia, including politicians, have an interest in Nagorno-Karabakh does not mean comments about Mrs Armstrong’s personal characteristics, chocolate or supposed terrorist links become matters that would attract this privilege.
83Even if I were to accept that the publications were political comments, Mrs Assatryan’s conduct in publishing the publications was not reasonable. The defence fails.
Were the matters complained of published as a reply to attack?
84There was no evidence of an attack on Mrs Assatryan. Mrs Assatryan pleads that Mrs Armstrong had generally attacked Armenians in her posts. Even if that is true, that is not an attack that would enliven the defence, which requires the individual to have been attacked.
85However, I do not accept that Mrs Armstrong’s posts constituted an attack on Armenia or Armenians.
Were the matters complained of published on an occasion of qualified privilege?
86Ms Assatryan did not adduce evidence to establish who the recipients of the publications were or why they had an interest in having the information. The publications were on public Facebook pages to the world at large. The recipients of the publications may have included those with an interest in Azerbaijan, Armenia, chocolate, Russia, skincare, Mrs Armstrong’s friends and family, and others.
87It is not clear why any of these people would have an interest in the information. However even if I accepted that some of these people would have the requisite interest, I cannot be satisfied that all of the people who received the information would have such an interest.
88The common law defence of qualified privilege fails as Mrs Assatryan has not established the privileged occasion.
89The statutory defence of qualified privilege requires, in addition to demonstrating that the recipients had an interest in having the information and that the information was published in the course of providing that information, that Mrs Assatryan behaved reasonably in all the circumstances.[19] She must prove her conduct was reasonable in all the circumstances. She has not done so. The defence fails.
[19]Defamation Act 2005 (Vic), s30
Triviality
90Ms Assatryan says the publications were:
(a) uploaded among a flurry of other serious comments and posts made by others;
(b) posted in the context of a war;
(c) in response to obviously controversial posts of the plaintiff supporting the other country in that war;
(d) able to be easily and quickly removed by Mrs Armstrong;
(e) likely only seen by a few people who were likely to already have strong views themselves;
(f) likely to be seen by people who understand the emotional and partisan nature of the points of views expressed;
(g) unlikely to have changed anyone’s perception of the plaintiff.
91The onus rests on a defendant to prove that the circumstances of publication mean a plaintiff would be unlikely to sustain any harm.
92The Court must consider the circumstances of the publication, not just the likelihood that the words themselves could cause harm. Serious imputations might not cause harm if publication of those imputations is to a small group of people who all know the plaintiff well and do not believe the allegations.
93Mrs Assatryan made submissions but did not put on any evidence to support her claim that the circumstances of the publication mean it is unlikely Mrs Armstrong would sustain any harm.
94There is no evidence that publication was confined to those who were aware of the Armenian and Azerbaijan conflict.
95The assertion that Mrs Armstrong could have quickly removed the posts is refuted by Mrs Armstrong, who says on Facebook business pages she does not have the capacity to remove publications expressed as “reviews”. She gave evidence that this limitation was known by Mrs Assatryan, who encouraged others to leave “reviews” rather than “comments” so as to avoid Mrs Armstrong deleting posts.
96I accept Mrs Armstrong’s evidence that reviews cannot be removed by the operator of the page.
97Mrs Assatryan has not established the publications were unlikely to cause any harm and, accordingly, the defence fails.
Injurious falsehood
98Mrs Armstrong makes a claim in injurious falsehood for losses sustained to her business.
99Mrs Armstrong must prove:
(a) Mrs Assatryan made false statements of or concerning the plaintiff’s business or goods; and
(b) published those statements to a third person; and
(c) was motivated by malice which can include an intention to cause harm of the kind suffered; and
(d) as a result, she has suffered actual loss caused by false statements.
100In this case, Mrs Armstrong would need to prove that the financial loss she sustained to her business, Enjoy Dark Chocolate, was caused by the falsehoods contained in the publications.
101Mrs Armstrong has established that the statements were false. The statements that her business was a front for international terrorism, and that her chocolates are poison, cause allergies and indigestion and are expired are self-evidently statements concerning Mrs Armstrong’s goods or business.
102I am satisfied on the evidence that Mrs Assatryan was motivated by malice, in that she intended to cause harm to Mrs Armstrong in order to ensure her views about the conflict in Nagorno-Karabakh were “shouted down” or punished.
103However, Mrs Armstrong must also prove that the actual loss she claims arose from the particular false statements of Mrs Assatryan, and not from the social media attack more generally.
104This would require evidence that:
(a) The business lost sales or customers because the false statements caused people to be so concerned by allegations of terrorism or the quality of Mrs Armstrong’s chocolate that they declined to buy chocolate from her; or
(b) the false statements caused potential customers to be so concerned about the quality of her chocolate or her customer service that they declined to buy chocolate from her; or
(c) her inability to retain a chocolatier was a direct result of the false statements; or
(d) Mrs Armstrong was unable to continue running her business because of the false statements concerning her goods and business.
105The raw data provided by Mrs Armstrong and the evidence of Mr Armstrong demonstrates the decline in sales to the business.
106It is apparent that there were a number of factors that caused Mrs Armstrong’s business loss:
· the COVID-19 pandemic,
· the difficulty obtaining the services of a chocolatier
· her belief that she was facing an overwhelming social media attack
· her mental health and her capacity to run the business.
Did Mrs Armstrong have difficulty sourcing a chocolatier because of the false statements?
107I cannot be satisfied that the inability to source a chocolatier was caused by the false statements.
108Mrs Armstrong said that after the COVID lockdowns ended in September 2020 she had secured the services of a chocolatier. She says what she describes as “the trolling attack” caused her to cease production while she dealt with the attacks and the effects they were having on her.
109Mrs Armstrong relied on a chain of email correspondence with Melbourne Bush Foods, with whom Enjoy Dark Chocolate had been having discussions about outsourcing chocolate production. The documents do not support a claim that the social media attacks generally, or any false statements by Mrs Assatryan, had any impact on Melbourne Bush Foods’ decision not to partner with Enjoy Dark Chocolate. It appears from the documents that Melbourne Bush Foods did not commit to production with Enjoy Dark Chocolate.
110Later, in July 2021, Enjoy Dark Chocolate entered into discussions with another chocolatier ‘Arno’. These discussions did not result in Arno working with Enjoy Dark Chocolate, but again, there is no evidence that this was a result of any statements by Mrs Assatryan, nor a consequence of the social media attack more generally. Instead, it appears Arno did not agree to the terms proposed by Mr Armstrong and both parties decided not to go into partnership.
111Mrs Armstrong relied on various other email exchanges with chocolatiers, and various advertisements in relation to her attempts to secure a chocolatier. None of that assists her in establishing that any potential chocolatier knew about the false and misleading statements of Mrs Assatryan, or the social media attack more generally, let alone establishes that either of those things was the reason for her difficulty in securing a chocolatier.
112It appears, rather, that the terms of the arrangement offered by the business were not satisfactory to the potential chocolatiers.
113I am not satisfied that the false statements caused Enjoy Dark Chocolate to be unable to engage a chocolatier.
Did customers stop ordering from Enjoy Dark Chocolate because of the false statements?
114There is no evidence that customers stopped ordering chocolates because of the false statements.
115Mrs Armstrong gave evidence that she was questioned about why Mrs Assatryan had made those comments and even years after they were posted people still raised them with her. That is not the same as people indicating they no longer purchased chocolates because of the statements.
116There is no evidence from which I can draw an inference that the statements caused people to stop ordering chocolates.
117In fact, the evidence demonstrates that the chocolates were not available for order, and this was a cause of disappointment.
118For example Saverio Motta, a former client of Enjoy Dark Chocolate, gave evidence by affidavit:
“1. I am a former client of Enjoy Dark Chocolate. In my capacity as Sales Manager for Readify/Telstra Purple I made Christmas purchases from Enjoy Dark Chocolate in 2017 and 2018 worth approximately $10,000 in each year. A copy of some of the invoices are at pages 5 and 6 of the bundle exhibit to this my affidavit.
2. In late October 2020 I again contacted Khuraman Armstrong with the view of providing EDC chocolate gift boxes to my clients as presents for Christmas 2020.
3. I was disappointed to hear that wasn’t possible given the wonderful customer service, the quality products, and the positive feedback from my clients that I had received over the prior years.
4. I was even more saddened when Khuraman explained to me that the reason why she could no longer supply us chocolates was because of the impact of the online attacks upon Khuraman by various people that were unknown to her on her Facebook page. I know from previous conversations with Khuraman that the Christmas lead up was the busiest time for their chocolate sales.”[20]
[20]JCB 412
119Elena Ponomareva gave evidence and relied on an affidavit in which she exhibited a comment she had posted in response to Mrs Assatryan. She noted in that post ‘your chocolate is seriously the top quality, the best experience I’ve ever had and I’m not alone complaining about the lockdown simply because you are forced to stop production’.
120I do not accept that customers stopped placing orders because of the false statements.
Were the false statements responsible for Mrs Armstrong’s mental state and inability to continue her business?
121Mrs Armstrong says:
“On 23 July 2020 even before the show aired, hate comments from Armenian group members started to appear on the Russian Women’s Network Melbourne Facebook page…
One of these comments was made by the first defendant
...
I was too terrified to respond to any of those comments directly but immediately asked the administrator of the page to take the posts down. However as the administrator did not remove the comments until the next day 7500 members of that group potentially saw the first defendant’s defamatory comment.”
122She said that the viral effects of her television appearance and her chocolate posts “led to a vicious, racially motivated mob attack” which included more than 80 trolling posts, fake reviews and threats of violence.
123Mrs Armstrong said that Mrs Assatryan commented on, and liked others posts that had similar content which led Mrs Armstrong to form the view that Mrs Assatryan was directing the attacks. She said she checked the Facebook pages of those attacking her and discovered that:
“…long before they attacked me they all had one thing in common – an apparent hatred to Turks and Azerbaijanis. I saw multiple threads on their personal profiles looking to find and punish Azerbaijanis in various countries because of their nationality, including publishing phone numbers and addresses of some of their targets. This made me fear for my life, given they already knew my phone number and address and had started phone threats against myself.”[21]
[21]JCB 118
124Mrs Armstrong said reading all the messages made her very scared and even today she still shakes and cries when she reads them. She still feels scared to post her location on social media, and lives in constant fear.
125She gave detailed evidence about the effects of the attacks on her, which included recurring memories, difficulty breathing, depression and anxiety.
126She relies on a report of Dr Mark Schiff, psychiatrist, who started treating her in February 2021. He diagnosed her with post-traumatic stress disorder with secondary panic and depressive symptoms and severe dissociative and cognitive symptoms. He considers her prognosis guarded having regard to the length and severity of her symptoms. He says, “the effect of the defamatory actions has a direct and long-lasting impact on all aspects of [her] life including her mental and physical health, personal and social relationships and trajectory of her working career.”.
127Mrs Armstrong exhibited to her affidavit some of the messages she received but which are not sued on. For example: [22]
(a) ‘Vito Mike’ posted “Khuraman Armstrong Stay where you are and I am coming to show you the real fascist aggression, looks like you have never seen it in real life”;
(b) in response to a comment “Your country full of Terrorist” by an unknown person, Yeg Sat posted “yes you are right. Shusha is full of them now. Don’t worry. Cleaning in process.”
(c) Mark Alexanian posted “I have two homes in Shushi, and been living there for 100 years. You stay dreaming azeri occupant barbaric rat. Karabagh is Armenia yesterday, today and tomorrow forever. azerGAYjan days are numbered, ISIS compound motherfucker bitches.”
(d) Mark Alexanian posted a photograph of Mrs Armstrong with the text “the whore” written above it.
[22]JCB 248-249
128It is not difficult to imagine that these posts would cause fear and anxiety and could result in Mrs Armstrong feeling unsafe. However, there is no evidence that Mrs Assatryan had any involvement with these posts. These are not the posts that are the subject of her claim in injurious falsehood, or defamation.
129The evidence supports a finding that in the period leading up to Christmas 2020, Mrs Armstrong was not in a state of mind to be able to run her business. I am satisfied that this was, at least in part, caused by the social media attack she was undergoing, and, in particular, her personal feelings of being unsafe because of threats made.
130Of particular concern to Mrs Armstrong was the threat to her personal safety and the fact that phone calls were made to her at home. There is no evidence Mrs Assatryan was responsible for any of those threats or of making phone calls to Mrs Armstrong.
131Nor, aside from suggesting people post reviews rather than comments, is there evidence that Mrs Assatryan directed or coordinated attacks by others. She specifically denied having done so. Although Mrs Armstrong appears to have attributed much of the blame for the overall social media attack to Mrs Assatryan, she has not made out this case. There are numerous other posts which make similar comments to those made by Mrs Assatryan and I am not satisfied that Mrs Assatryan was the instigator of those other posts.
132Dr Schiff’s opinion relates to ‘the defamatory actions’ but does not specifically consider the false statements of Mrs Assatryan. It is consequently of little assistance in determining the role of Mrs Assatryan’s false statements in her business and pecuniary loss.
133Rosalia Gonzalez gave evidence by affidavit that she saw many negative comments on the plaintiff’s personal Facebook page in about October 2020. She says Mrs Armstrong was extremely upset and could not believe “these Armenians” were attacking her so horribly. Ms Gonzalez identifies the posts of Mrs Assatryan as “one of the worst” that was posted about Mrs Armstrong. The thread relied on by Mrs Gonzalez shows numerous other comments in support of Mrs Armstrong, including encouraging her to take matters further and noting Mrs Assatryan’s comments are “despicable allegations” for which she should be reported, rhetorically asking “who is going to believe your nonsense arguments?” and “how come making chocolate can be a terrorist act?”
134That thread does not support a finding that Mrs Assatryan’s posts were the cause of Mrs Armstrong’s loss. Ms Gonzalez’s evidence supports a finding that the social media attack generally caused Mrs Armstrong’s mental health decline.
135I am not satisfied on the evidence that Mrs Assatryan’s false statements caused, or would have been capable of causing, the extent of Mrs Armstrong’s psychiatric injuries which rendered her incapable of continuing her business at that time.
136Therefore, Mrs Armstrong’s claim for injurious falsehood is dismissed.
Damages
137Mrs Armstrong has established the imputations pleaded were conveyed and were defamatory. Mrs Assatryan has not established any of her defences. Mrs Armstrong is entitled to damages from Mrs Assatryan for defamation.
Extent of publication
138Mrs Armstrong gave evidence that when comments started to appear on the Russian Women’s Network Melbourne Facebook page in relation to her television program the posts were not removed until the next day and the comments were available to be viewed by the 7,500 members of that Facebook community.
139By October 2020, she says there were more than 80 posts, fake reviews and threats of violence posted on her Facebook pages. The Enjoy Dark Chocolate Facebook page had about 4,500 followers at the time of the publications. Her Instagram page has 1,426 followers.
140She was contacted by many business colleagues and friends who saw the posts and relies on a grapevine effect.
Damage to reputation
141Mrs Armstrong says that prior to the “attacks”, her advertisements on the Russian Women’s Network Facebook Group would get about 80 to 90 comments, but now those same advertisements get barely ten comments.
142Her Enjoy Dark Chocolate page still has over 4,500 followers but is largely dormant.
143She says, as a consequence of the publications by all defendants, she gets recurring memories, disturbed feelings, feels tight in her chest and is unable to breathe freely. She no longer feels safe at home and can no longer do her job because of fear and anxiety. She is under financial pressure.
144She says she has been asked about her connection to terrorist organisations and is regularly asked about the comments and why “those people could hate [her]”.
145She says people assume that she does not like Armenians, which is not true, and which she finds humiliating. This causes her to withdraw from individuals and Facebook groups. She then feels socially isolated.
Hurt and embarrassment
146After reading the comments posted by Mrs Assatryan, Mrs Armstrong says she was shaking, scared and crying for days. She attempted to have the comments removed but her request was denied. She says, even now, she feels scared to post her location on social media and she lives in constant fear.
Medical expenses
147Mrs Armstrong says she suffers acute anxiety and post-traumatic stress disorder and has sought treatment from two psychiatrists and psychologists. She has been prescribed anti-depressant medication and has had acupuncture, massage and herbal medicine. She makes a claim for the costs of these treatments which total $20,141.36. She claims for future medical expenses.
Business losses
148Mrs Armstrong claims damages for business losses as special damages caused by the defamation if her claim for injurious falsehood is not made out. She says as a consequence of the defendants’ imputations and her “fear of further defamatory posts”, she was unable to fully promote her business from October to December 2020.
149She says that the COVID-19 lockdowns were easing in September 2020 and she had secured “the services of our chocolatiers in preparation for a strong run to Christmas”. However, as the Christmas marketing campaign was about to launch, the “trolling attack” began and caused her to cease production while she dealt with the attacks and the effect they were having on her. As a result, she says the staff secured other work and she was unable to restart production.
150She says her business suffered dramatically. Despite her best efforts to keep trading, she has been unable to overcome the negative impacts of the publications. She claims $17,618.34 in lost income from sales.
151She says she has lost the value of her business in the amount of $24,000. She relies on an expert report prepared by forensic accountant, Carissa Lacey.[23]
[23]JCB 639
152She says she was unable to complete an expensive course she had enrolled in and claims the cost of this course in the amount of $13,000.
Assessment
153There are well-established principles for assessing damages in defamation. Such principles are helpfully summarised by John Dixon J in Wilson v Bauer Media Pty Ltd:[24]
(a) Damages should provide consolation for hurt feelings, damage to reputation and vindication of the plaintiff’s reputation;[25]
(b) Damages ought to reflect the high value which the law places upon reputation and, in particular, upon the reputation of those whose work and life depends upon their honesty, integrity and judgment;[26]
(c) The gravity of the libel and the social standing of the parties are relevant to assessing the quantum of damages necessary to vindicate the plaintiff. The award must be sufficient to convince a bystander of the baselessness of the charge;
(d) There must be an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded;
(e) The extent of publication and the seriousness of the defamatory sting are pertinent considerations;
(f) In determining the damage done to a plaintiff’s reputation, the Court should also take into account the “grapevine” effect arising from the publication;[27]
(g) It is well accepted that injury to feelings may constitute a significant part of the harm sustained by a plaintiff;[28] and
(h) Aggravated damages are a form of compensatory damages and, where appropriate, form part of the general damages awarded to a successful plaintiff for non-economic loss, designed to reflect aggravation caused to a plaintiff’s hurt or injury by reason of some conduct of the defendant.
[24][2017] VSC 521 at paragraph [59] (“Wilson”)
[25] Belbin & Ors v Lower Murray Urban and Rural Water Corporation [2012] VSC 535 at paragraph [242]
[26] Wilson (supra) citing Carson v John Fairfax & Sons Ltd (1993) 178 CLR 34
[27]Lower Murray Urban and Rural Water Corporation v Di Masi; Lower Murray Urban and Rural Water Corporation v Belbin; Lower Murray Urban and Rural Water Corporation v Marciano (2014) 43 VR 348 at 388-390
[28] Wilson (supra) citing Carson vJohn Fairfax & Sons Ltd (supra) at 71
154Where there are multiple defamatory publications by different people:
“… The defendant must answer fully in damages to the extent that its publication has brought about damage to reputation, but for the damage solely caused by its publication.”[29]
[29]Uren v John Fairfax & Sons Pty Ltd (1965) 66 SR (NSW) 223 (“Uren”) at 229
155Mrs Armstrong relied on her own evidence and evidence of a number of other people, including her husband and a colleague, Ms Elena Ponomareva, as to her standing within the Azerbaijani and Russian-speaking community in Australia. It is apparent that she has had a very successful career in a number of fields and appears to have an entrepreneurial spirit. As a migrant to this country she has started two businesses and is active in various communities. She is described by Mr Tofik Mamedov as offering “outstanding” customer service.[30] Ms Ponomareva gave evidence of the “enormous time and commitment” she has given to her Nu Skin business, including attending and presenting at numerous leadership events. She describes Mrs Armstrong as going “way above and beyond to firstly welcome and host clients in her home, and then to ensure they receive the best possible advice and support”.[31]
[30]JCB 418
[31]JCB 398
156It is clear that as a businesswoman in the Russian-speaking community, Mrs Armstrong had a reputation for hard work and excellent customer service.
157Each case necessarily turns on its own facts. In this case, it is difficult to imagine that many people would have read the publications and formed the view that Mrs Armstrong was an international terrorist or involved in international terrorism. Nevertheless, those comments may have caused an ordinary reasonable reader to have a lower opinion of Mrs Armstrong, or for her reputation to be damaged by a reader thinking that there may be something sinister associated with Mrs Armstrong’s business.
158The comments, replies, and “likes” by other Facebook users also indicate that the publications were read. Given the number of followers Mrs Armstrong’s pages had and the significant number of responses,[32] I am satisfied that it is likely that hundreds of people saw the comments.
[32] JCB 56, 108
159There is also evidence of some grapevine effect within the relatively small community of Russian speakers in Australia, for example the evidence that people asked her about the comments, and formed a view that she had a problem with Armenian people.
160It is clear from the evidence that a substantial component of the damage caused to Mrs Armstrong is the hurt and embarrassment she has suffered and the consequences for her mental health of the social media “attack” on her and her business.
161No doubt each of the defamatory publications caused Mrs Armstrong hurt and embarrassment; however, it is apparent from her evidence that the overwhelming nature of the social media barrage was the cause of her psychiatric injury. In particular the threatening messages she received are more likely to be responsible for her fears for her personal safety, than comments about the quality of her chocolate.
162Mrs Armstrong points to the role Mrs Assatryan had in encouraging others to “pile on” and directing people to leave reviews rather than comments (which were more difficult to delete) to support a claim that Mrs Assatryan had a significant role in the overall “attack”. Having reviewed the numerous publications, I accept that Mrs Assatryan played an early and significant role. I do not accept that the evidence establishes that she orchestrated or directed the attack.
163Mrs Assatryan’s comments do not have to be the only cause of Mrs Armstrong’s loss and damage, provided I am satisfied that they are one of the causes.
164In assessing the appropriate damages for which Mrs Assatryan is liable, I must be satisfied of the damage caused, or capable of being caused, by her publications.
165I do not accept, on the balance of probabilities, that the seven publications for which Mrs Armstrong sues Ms Assatryan caused or could have been capable of causing her post traumatic stress disorder, or any other psychiatric injury.
166Therefore, Mrs Assatryan is not liable for the medical expenses claimed.
167Mrs Armstrong’s inability to run her business was a result of her psychiatric condition. It was her inability to run her business that caused her business losses rather than any loss of custom, or inability to retain a chocolatier.
168I am not satisfied, for the reasons set out in my findings in relation to injurious falsehood, that Mrs Assatryan is liable for the business losses sustained.
Mitigation
169Section 38 of the Defamation Act provides factors that can be considered in mitigation of damages. These include an apology or correction, the fact the plaintiff has already recovered damages in relation to other publication of the same matter, or for publications having the same meaning or effect.
Apology
170Ms Assatryan commenced her evidence in court by saying that at the time of making the publications she was upset. Melbourne was in a COVID-19 lockdown and reading the bad news about the situation in Nagorno-Karabakh caused an emotional response. She did not respond in a healthy way. She regretted her actions and had tried many times to rectify the situation. She had offered to apologise and retract her statements.
171Ms Assatryan’s apology appeared genuine; however, it is somewhat diminished by the fact that she maintained her defences and conducted her case in a way that continued to suggest that Mrs Armstrong was, in part, to blame for posting what Mrs Assatryan considered to be inflammatory material. I do not consider the apology to be a mitigating factor.
Settlement of other claims
172If some of the damage done to a plaintiff’s reputation is the result of multiple defamations, a plaintiff ought not be compensated twice for the same loss.[33]
[33]See Uren (supra) at 230
173Section 38 is to be applied in a broad way to prevent a plaintiff receiving double compensation. Whilst requiring the defendant to answer fully in damages, it restricts those damages to the injury caused by the publication sued upon by the plaintiff.[34]
[34]Thompson v Australian Capital Television Pty Ltd & Ors (1997) 129 ACTR 14 at 24
174With respect to hurt feelings, it is the hurt occasioned by matters complained of in the present proceeding that is to be compensated.[35]
[35]Wagner & Ors v Harbour Radio Pty Ltd & Ors [2018] QSC 201 (“Harbour Radio”) at 887
175Mrs Armstrong had settled defamation claims against a number of other defendants prior to trial and has received a total amount of about $80,000 in compensation. She submitted that the defamatory claims made by those other defendants afforded no mitigatory prospects as the imputations were significantly different, for example that Mrs Armstrong had stolen chocolate recipes or was a poor businesswoman.
176Ms Assatryan’s publications were across all three Facebook pages operated by the plaintiff. The publications for which the plaintiff has already been compensated were only on the business page.
177In Harbour Radio,[36] the Court held that publication to different audiences is a factor to be considered in relation to mitigation.
[36]Ibid
178I accept that the publications sued upon contain at least some distinct imputations. Mrs Assatryan made comments on different Facebook pages, though the evidence of Mrs Armstrong was that her social media platforms were significantly inter-related. Nevertheless, it is likely that some people who saw Mrs Assatryan’s publications did not see the publications of the other defendants.
179Given that a substantial part of Mrs Armstrong’s damages are for hurt and embarrassment, and this can be awarded only in relation to the hurt caused by each defendant’s publication, I do not consider there is any significant mitigatory effect of the settlement of other proceedings.
180To the extent that the compensation already received provides vindication to Mrs Armstrong, it does so on the basis of those publications only. The settlement of those claims is likely to have had only a modest impact in ameliorating the harm she sustained and restoring her reputation. A simple arithmetical reduction of the compensation already received from damages she is entitled to against each of the remaining defendants is inappropriate, given that each of them is liable only for the damage they have caused. I am not persuaded there has been substantial rehabilitation afforded by the settlement of those other claims.
Republication by the plaintiff
181Ms Assatryan also argues that Mrs Armstrong has failed to mitigate her own loss by republishing some of the posts complained of. Mrs Armstrong republished those posts to demonstrate the attack she considered she had been under. I do not accept that this “republication” was itself responsible for any of the harm she sustained.
Aggravation
182The plaintiff claims aggravated damages against each of the defendants to compensate her for the increased hurt and humiliation she has experienced as a result of the defendants’ conduct up to the date of judgment.[37]
[37]See for example Praed v Graham (1889) 24 QBD 53 at 55 (Lord Escher MR); Broome v Cassell & Co Ltd [1972] AC 1027 at 1071 (Lord Hailsham of St Marylebone LC); Cerutti & Anor v Crestside Pty Ltd & Anor [2014] QCA 33 at paragraph [37] (Applegarth J)
183The test is whether the defendants’ conduct was improper, unjustifiable or lacking in bona fides.[38]
[38]Triggell v Pheeney (1951) 82 CLR 497 at 514 (Dixon, McTiernan, Williams, Webb and Kitto JJ)
184Mrs Armstrong says Mrs Assatryan has aggravated her damages by relying on a truth defence. She says Mrs Assatryan was motivated by malice and with the sole purpose of causing Mrs Armstrong harm. She encouraged others to also attack Mrs Armstrong.
185The defamatory statements in this case made by Mrs Assatryan as well as numerous other people on the plaintiff’s social media page, are unfortunately indicative of the venting of spleen that can frequently be seen online.
186The veneer of anonymity afforded by social media allows people who might ordinarily keep their thoughts to themselves to publicly vent without considering the consequences. A pile-on ensues. It is much easier to demonise an online presence and to forget that behind the online presence is a real person who is impacted.
187Mrs Assatryan never genuinely thought Mrs Armstrong was a terrorist, a criminal, was poisoning people or was running a front for international terrorism. Mrs Assatryan, like many people, considered she had an entitlement to express her opinion. She said, “I had no idea about defamation”. She did not think about the impact on the plaintiff’s livelihood. She was upset about Mrs Armstrong’s posts and wanted them to be removed. She did not want the conflict in Nagorno-Karabakh to be “melded” with chocolate. It goes without saying she was and is entitled to have and express those views. However, she went well beyond her entitlement to freely express her views. Making extreme allegations that Mrs Armstrong was a terrorist and a criminal, and posting untrue negative comments about the source of Mrs Armstrong’s income – the quality of her chocolate – is not protected free speech.
188Mrs Assatryan’s conduct aggravated the harm caused to Mrs Armstrong and Mrs Armstrong is entitled to aggravated damages.
Award of damages against Mrs Assatryan
189In assessing all the factors I must weigh up, I consider the hurt to Mrs Armstrong to be the most significant consequence of the publications.
190Mrs Assatryan published across multiple Facebook pages, ensuring greater exposure. She published numerous times. She encouraged others to post and provided a tip on how to ensure the posts were not easily removed. I consider an appropriate award of damages arising from the first defendant’s publications is $70,000 including aggravated damages.
Assessment of damages against the second and fifth defendants
191Judgment was entered against the second and fifth defendants. As a result, the allegations in the pleading are taken to have been proved.
Anna Gabrielyan’s publications
192The second defendant, Ms Anna Gabrielyan, published two reviews and one comment on the plaintiff’s business page. In October 2020, Ms Gabrielyan posted that Mrs Armstrong “uses some sweets to make terrorist statements and support [A]zerbaijani aggression during war times”.[39] Ms Gabrielyan’s second review says Mrs Armstrong “deletes all the constructive criticism from her product comments” and exhibits “poor very ignorant behavio[u]r for an entrepreneur!”.[40] After Mrs Armstrong comments on this review, saying that Ms Gabrielyan has never purchased her chocolates, Ms Gabrielyan says that she will never purchase Mrs Armstrong’s chocolates, says Mrs Armstrong is “a terrorist” and that her “product” is the “terrorism that [she] support[s]!”.[41]
[39]JCB 48, FASOC 9(a)
[40]JCB 49, FASOC 9(b)
[41]JCB 49, FASOC 9(c)
Imputations pleaded
193Mrs Armstrong pleads the publications conveyed that she:
(a) is a liar;
(b) is ignorant;
(c) is a poor businesswoman;
(d) is involved in terrorism;
(e) is a terrorist; and/or
(f) supports terrorism.
Katya Kahramanian’s publication
194In October 2020, the fifth defendant, Ms Katya Kahramanian, published a review on the plaintiff’s business page alleging that Mrs Armstrong ignored multiple requests for a refund after Ms Kahramanian ordered chocolates that became lost in transit.[42]
[42]JCB 52, FASOC 27(a)
Imputations pleaded
195Mrs Armstrong pleads the publication conveys she:
(a) failed to deliver chocolates to her;
(b) failed to refund money for undelivered chocolates;
(c) ignored customers with complaints;
(d) had poor customer service; and/or
(e) had customer service that was worth zero stars.
Mrs Armstrong’s response to the publications of the second and fifth defendants
196Mrs Armstrong says, reading the second defendant’s comments caused her to be shocked and shaking. She cried in disbelief. The second defendant also posted a fake review which “left … [her] crying as all … [her] hard work was collapsing all around … [her]”.[43]
[43]JCB 119
197Mrs Armstrong says she was devastated after reading the fifth defendant’s comments. The fifth defendant was never a customer and had no knowledge of her product or customer service. When she responded in the comments to the review, the fifth defendant doubled down and said Mrs Armstrong was “rude” and that the comment proved her poor customer service. Mrs Armstrong says she had no way of demonstrating to new people visiting her pages that the review was fake. It was damaging to her chocolate business as well as her own “brand”.
Damage to Mrs Armstrong’s reputation
198I am satisfied that the publications by Ms Gabrielyan and Ms Kahramanian are likely to have caused harm to Mrs Armstrong’s reputation.
199There is evidence that the statements were seen by a number of people.[44]
[44]JCB 406-456
200While it is unlikely Ms Gabrielyan’s posts would have caused anyone to be persuaded that Mrs Armstrong was a terrorist, they would tend to cause a reasonable reader to have concerns or doubts and to think less of Mrs Armstrong. Ms Gabrielyan’s comments about Mrs Armstrong’s customer service and business are likely to harm her reputation as a professional chocolate seller.
201Ms Kahramanian’s comments were likely to be particularly damaging as they purport to be from an actual customer and make believable, albeit false, complaints which would cause concern to real customers. Unlike posts accusing Mrs Armstrong of terrorism which are clearly partisan and coming from a particular aggrieved perspective, a post that claims the product never arrived and that Mrs Armstrong refused a refund would be more likely to be believed and more likely to cause a potential customer to decline to place an order.
202Given that, at the time, it was not possible for a customer to place an order as production had not recommenced following the COVID lockdown, I do not find Ms Kahramanian’s comments caused actual business loss. However, I do consider the nature of her remarks and the fact that she pretended to be a customer so as to post a defamatory comment significantly aggravates the damage.
203Neither Mrs Gabrielyan nor Mrs Kahramanian filed notices of appearance, and judgment was entered in default. Mrs Armstrong has had to go to great lengths to bring the proceedings to their attention and has incurred additional costs of doing so. Mrs Kahramanian was never a customer of Mrs Armstrong, despite purporting to be so, and one can infer her comments were motivated solely by malice and a desire to cause harm. Ms Gabrielyan did engage in some discussion with the plaintiff and offered to take the post down, but never offered compensation. One can infer from her posts that she was motivated by malice and an intention to cause harm. Mrs Armstrong is entitled to an award of aggravated damages against each defendant.
204Having considered all of the circumstances the appropriate award of damages for Ms Gabrielyan’s publications is $25,000 including aggravated damages. The appropriate award of damages for Ms Kahramanian’s publications is $30,000 including aggravated damages.
Injunction
205Mrs Armstrong seeks a permanent injunction restraining the defendants from further publication of the defamatory imputations.
206Injunctions are only issued when some additional factor is evident, usually an apprehension that the defendant may, by reason of irrationality, defiance, disrespect of the Court’s judgment or otherwise, publish allegations similar to those found to be defamatory,[45] or when the defendant’s persistence in making repeated defamatory publications has the flavour of a vendetta.[46]
[45]Polias v Ryall [2014] NSWSC 1692 at paragraph [99]; Sierocki v Klerck (No 2) [2015] QSC 92 at 154, paragraphs [52]-[53]
[46]Graham v Powell (No 4) [2014] NSWSC 1319 at paragraphs [45] and [48]; Sierocki v Klerck (No 2) (supra)
207The second and fifth defendant have demonstrated disrespect of the Court’s process by refusing to accept service, enter appearance or participate in the claim. Mrs Assatryan’s comments over a number of days and her active participation on Mrs Armstrong’s social media page during that period had the flavour of a vendetta against Mrs Armstrong.
208The conflict over Nagorno-Azerbaijan clearly induces strong feelings in Mrs Assatryan, such that there is a risk that she will act irrationally, or defiantly in what she could consider to be defence of Armenia.
209On that basis I consider there is a risk that Mrs Assatryan could, in future, post defamatory comments about Mrs Armstrong. In those circumstances it is appropriate to make an order restraining her from doing so.
210This means that if Mrs Assatryan publishes the defamatory imputations in the future, she would expose herself not just to a further claim in defamation, but would potentially be in contempt of court, and be exposed to the penalties for contempt as a consequence.
211I order that Mrs Assatryan, Ms Gabrielyan and Ms Kahramanian be restrained from further publishing the defamatory imputations.
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