Dods v McDonald (No 1)
[2016] VSC 200
•6 May 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2013 01637
| COLIN DODS | Plaintiff |
| v | |
| MICHAEL MCDONALD | Defendant |
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JUDGE: | Bell J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4, 5, 6, 9, 10 & 11 November 2015 |
DATE OF JUDGMENT: | 6 May 2016 |
CASE MAY BE CITED AS: | Dods v McDonald (No 1) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 200 |
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DEFAMATION – Internet website – trial by jury – defendant’s application of no case to answer – whether website pages had been published inside limitation period – whether statements in pages had been communicated to and comprehended by at least one person other than plaintiff – inferring publication in Internet cases – evidence that subject of alleged defamation was matter of substantial public controversy and that searches on standard search engine listed defendant’s website very highly – whether evidence, if accepted by jury, could properly support inference of publication to unidentified persons – other evidence of publication to one person (other than plaintiff) inside limitation period – person had previously read statements outside that period – whether one publication or two – whether, by maintaining website, defendant engaged in continuing act of publication to all persons, including previous readers – Defamation Act 2005 (Vic) s 7(2) – Limitation of Actions Act 1958 (Vic) s 5(1AAA).
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APPEARANCES: | Counsel | Solicitors |
| For the plaintiff | Mr D Bracken | Tony Hargreaves & Partners |
| For the defendant | Mr T Greenway | Rigby Cooke Lawyers |
HIS HONOUR:
Introduction
By a writ issued on 3 April 2013, Colin Dods sought damages against Michael McDonald for damages for alleged defamatory statements on an Internet website. The trial was conducted before a jury of six. At the close of the plaintiff’s case, the defendant submitted that he had no case to answer because there was no evidence that he had published the statements within the applicable limitation period. I ruled against that submission. These are my reasons.
The plaintiff is a sergeant of police in Victoria. The defendant is a barrister in Queensland. The alleged defamations consisted of highly critical statements made in June and July 2012 in the Internet website justice4tylercassidyjust15.com (now withdrawn) that was administered by the defendant. The statements concerned the plaintiff’s involvement in the death of Tyler Cassidy (aged 15 years) in tragic circumstances in Northcote in December 2008. He was one of four police officers present when Mr Cassidy was shot by one of them. The incident generated substantial public controversy and was the subject of a coronial inquiry. Among the statements complained of were statements that the plaintiff had ‘executed’ Tyler and that Tyler was ‘gunned down as if he was a dangerous mongrel dog’. A report of the coroner published in November 2011 effectively exonerated the plaintiff of personal responsibility. The statements were not removed from the website until mid-July 2012.
The elements of the tort of defamation are publication and defamatory matter.[1] The tort is established when the plaintiff proves that the defendant (without a defence) has published material about the plaintiff to at least one person other than the plaintiff that causes damage to the plaintiff’s reputation.[2] Section 5(1AAA) of the Limitation of Actions Act 1958 (Vic) provides that ‘[a]n action for defamation must not be brought after the expiration of 1 year from the date of the publication of the matter complained of’. This provision prevented the plaintiff from obtaining damages for defamatory statements published before 3 April 2012.
[1]Defamation Act 2005 (Vic) s 7(2).
[2]Dow Jones & Co Inc v Gutnik (2002) 210 CLR 575, 600 [25]-[27] (Gleeson CJ, McHugh, Gummow and Hayne JJ) (‘Dow Jones’); Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173, 177 (Hunt J) (‘Toomey’).
To bring the case within the limitation period, the plaintiff led evidence from a friend of his family who deposed that she had downloaded the pages containing the statements from the defendant’s website and read them in June and July 2012. The defendant submitted that this evidence did not establish a prima facie case because the witness had already downloaded pages from the website containing statements with the same material content before 3 April 2012. As the test of publication depended upon comprehension of the defamatory material by the reader (see below), the occasion of her first comprehension of the statements was the relevant one. As this occasion was outside and not inside the limitation period, the defendant submitted that the plaintiff’s claim was plainly statute barred and there was no case for him to answer.
I ruled against this submission for two reasons. First, publication may be inferred in Internet defamation cases where the evidence properly justifies it. Second, in the case of continuous or repeated publications, publication can be made to the same person more than once.
Inferring publication in Internet defamation cases
Where, in a civil trial before a jury, a defendant makes a submission that the plaintiff has not established a prima facie case to answer, the function of the judge is to determine whether, on the view of the evidence that is most favourable to the plaintiff, including any inferences that could properly be drawn by the jury from that evidence on the balance of probabilities, the jury could (not would) return a verdict in favour of the plaintiff.[3] When applying this test, the judge must ensure that the different constitutional functions of judge and jury are maintained.[4] The issue raised by the present application was whether there was evidence, if accepted by the jury, upon which it could properly find (including by inference) in favour of the plaintiff that the defendant had published the allegedly defamatory statements on or after 3 April 2012 to at least one person other than the plaintiff.
[3]De Gioia v Darling Island Stevedoring & Lighterage Co Ltd (1941) 42 SR (NSW) 1, 3-5 (Jordan CJ); Naxakis v Western General Hospital (1999) 197 CLR 269, 271 (Gleeson CJ), 281-4 (McHugh J), 291-4, 298 (Kirby J), 309-11 (Callinan J); Sarkis v Deputy Commissioner of Taxation (2005) 59 ATR 33, 39-40 [13]-[14] (Nettle JA, Warren CJ and Charles JA agreeing); Oakley v Insurance Manufacturers of Australia Pty Ltd [2008] VSC 68 (17 March 2008) [3] (Kaye J).
[4]Leading authorities are referred to in Bernard v Seltsam Pty Ltd (2010) 28 VR 46, 51-2 [23]-[26] (Bell J).
For the purposes of defamation law and subject to irrelevant exceptions, a defamatory statement is published when it is communicated to some person other than the plaintiff.[5] Communication to only one such other person is enough to constitute publication.[6] Since publication is an act of communication, it is not constituted by the unilateral act of the publisher but by the bilateral act of communication between the publisher and the reader.[7] As Isaacs J held in Webb v Bloch,[8] ‘[t]o publish a libel is to convey by some means to the mind of another the defamatory sense embodied in the vehicle.’[9] Comprehension being a necessary quality of communication, the communication must be in a form that is comprehensible to the reader; for example, it must be in a language that the reader can understand.[10]
[5]Pullman v Walter Hill & Co Ltd [1891] 1 QB 524, 527-8 (Lord Esher MR), 529 (Lopes LJ), 530 (Kay LJ); Toomey (1985) 1 NSWLR 173, 177 (Hunt J).
[6]Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364, 367 (Hunt J); See Matthew Collins, The Law of Defamation and the Internet (OUP, 3rd ed, 2010) 69 [5.05]; Alastair Mullis and Richard Parkes (eds), Gatley on Libel and Slander (Sweet & Maxwell, 12th ed, 2013) [187]-[188] 6.1.
[7]Dow Jones (2002) 210 CLR 575, 600-1 [26]-[27] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
[8](1928) 41 CLR 331 (‘Webb’).
[9]Ibid 363 (footnote omitted).
[10]See Matthew Collins, The Law of Defamation and the Internet (OUP, 3rd ed, 2010) 69 [5.03] and authorities cited therein.
These general principles apply to defamatory statements made on Internet websites. In that context and as regards the related issue of identifying the location of a defamatory publication, in Dow Jones & Co Inc v Gutnik[11] Gleeson CJ, McHugh, Gummow and Hayne JJ said:
Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener, or the observer. Until then, no harm is done by it. This being so it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone. It is not. It is a bilateral act — in which the publisher makes it available and a third party has it available for his or her comprehension.[12]
Their honours went on to say that the location of a defamatory publication is where the damage to reputation occurs, which ordinarily will be ‘where the material … is available in comprehensible form.’[13] In the case of material published on an Internet website, ‘it is not available in comprehensible form until downloaded on to the computer of a person who has used a web browser to pull the material from the web server’.[14]
[11](2002) 210 CLR 575.
[12]Ibid 600 [26].
[13]Ibid 606-7 [44].
[14]Ibid 607 [44].
Consistently with principles governing proof of publication by inference generally, [15] it is open to a plaintiff to prove publication to at least one other person via an Internet website, and the scope of any such publication, by inference from other evidence. This approach was endorsed in the oft-approved[16] judgment of Sedley LJ (Ward and Longmore LJJ agreeing) in Steinberg v Prithchard Englefield (A Firm) and Cohn.[17] His Lordship held that the allegedly defamatory letter
[15]David v Abidshou [2012] NSWCA 109 (27 April 2012) [286] (McColl JA, Beazley JA and Sackville AJA agreeing); see also Alastair Mullis and Richard Parkes (eds), Gatley on Libel and Slander (Sweet & Maxwell, 12th ed, 2013) [214] 6.21; Matthew Collins, The Law of Defamation and the Internet (OUP, 3rd ed, 2010) 69-70 [5.05].
[16] Al Amoudi v Brisard [2007] 1 WLR 113, 121 [33] (Gray J) (‘Al Amoudi’); McBride v The Body Shop International PLC [2007] EWHC 1658 (QB) (10 July 2007) [37] (Eady J); Corrie v Tolkein [2009] EWHC 29 (QB) (15 January 2001) [17]-[19] (Eady J); Ng Koo Kay Benedict v Zim Integrated Shipping Services Ltd [2010] SGHC 47 (9 February 2010) [26]-[29] (Lai Siu Chiu J); Zhu Yong Zhen v AIA Singapore Pte Ltd [2013] SGHC 37 (15 February 2013) [46] (Chan Seng Onn J); Dr Yeung Sau Shing Albert v Google Inc [2014] 4 HKLRD 493, 558 [166] (Deputy High Court Judge Ng); Duffy v Google Inc [2015] SASC 170 (27 October 2015) [299] ff (Blue J) (‘Duffy’).
[17][2005] EWCA Civ 288 (3 March 2005).
was accessible to anyone … who fed the claimant’s name into a standard search engine. It was also readable by anyone who accessed the defendants own professional website. The inference of substantial publication was [therefore] irresistible. [18]
Similarly, in Trkulja v Yahoo! Inc LLC[19] Kaye J had regard to the whole of the evidence to find that the relevant publication was widespread.[20] In doing so, his Honour said the court was ‘entitled to take into account, as a matter of judicial notice, that the use of the internet, to ascertain information about particular people, is now commonplace’.[21] Having regard to the ubiquity of the Internet, the courts are not slow to draw an inference of publication on websites. However, there is no rebuttable presumption to that effect.[22] As the author of a leading text states:
There must be a substratum of fact to support an inference of publication. It is not sufficient for the purpose of proving publication for a claimant simply to allege that defamatory matter was posted on the Internet and was accessible in the jurisdiction of the court.[23]
[18]Ibid [21].
[19][2012] VSC 88 (15 March 2012).
[20]Ibid [37].
[21]Ibid [36].
[22]Al Amoudi [2007] 1 WLR 113, 123 [37] (Gray J).
[23]Matthew Collins, The Law of Defamation and the Internet (OUP, 3rd, 2010) 69-70 [5.05] (footnote omitted).
In the present case there was a substratum of fact to support a proper inference of publication. The evidence before the jury was that the death of Mr Cassidy in 2008 was a matter of substantial public controversy. A coronial inquiry was conducted and the report was published in November 2011. Evidence was given to the jury by Mr Dods (the plaintiff), Robyn Dods (the plaintiff’s wife) and Samantha Mazer (the friend of the family). That evidence was that the pages containing the statements in question could be accessed on the defendant’s website simply by entering Mr Dods’ or Tyler’s name into a standard search engine (Google). The link to the defendant’s website came up on the first page of the search list[24] and was available to all to use. Mr Dods and Ms Mazer gave evidence of doing so on or after 3 April 2012. If accepted, this evidence could properly supply a factual foundation for a finding by the jury on the balance of probability by way of inference that the statements had been published to at least one (unidentified) person other that the plaintiff on or after that date. I instructed the jury accordingly.
[24]The prominence of the website in the search results is a relevant consideration: Duffyv Google Inc (No 1) [2015] SASC 170 (27 October 2015) [313] ff (Blue J).
Repeated publication to the same person
I turn now to consider whether, for the purposes of the law of defamation, publication of the same defamatory matter to the one person on two separate occasions is two publications, not one.
The only witness to give evidence of personal publication to a person other than the plaintiff was Ms Mazer. She testified that she visited the defendant’s Internet website and downloaded and read the page containing the first publication on 12 June 2012 and the pages containing the second publication on that date and 13 July 2012. She also testified that, on several occasions prior to 3 April 2012, she had visited the website and downloaded and read pages containing the statements, or statements that were not materially different.
Relying upon the judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in Dow Jones[25] and the judgment of Isaacs J in Webb,[26] it was submitted for the defendant that publication of a written statement is a bilateral communication between publisher and reader of which comprehension by the latter is an operative component. I accept this submission. The defendant also submitted that it logically followed that publication of the same or a not materially different statement to a person who had already comprehended it on a previous occasion did not amount to an additional publication. I do not accept this submission.
[25](2002) 210 CLR 575, 600 [26].
[26](1928) 41 CLR 331, 363.
Unlike other jurisdictions, the Australian jurisdictions have not introduced a single publication rule.[27] At common law, a multiple publication rule applies. Therefore, multiple publication of the same defamatory matter gives rise to as many separate causes of action as there are publications.[28] The multiple publication rule does not go so far as establishing the proposition that publication of the same matter to the one person on different occasions represents multiple publication. Discussion of the rule typically assumes that the multiple publications are to different persons.[29] So, in McLean v David Syme & Co Ltd[30] the rule was stated by Asprey JA thus:
if the issue of a newspaper containing defamatory matter has a circulation of 100,000 copies, that defamatory matter could be said to be published to at least the 100,000 persons who each buy and read a copy of that newspaper. At common law it is the act of publication of the defamatory matter which constitutes the cause of action.[31]
But the rule is not logically inconsistent with the proposition, and it does not appear ever to have been denied, that publication on two different occasions to the same person is two publications, not one.
[27]See generally Dow Jones (2002) 210 CLR 575, 601-5 [29]-[37] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
[28]Harris v 718932 Pty Ltd (2003) 56 NSWLR 276, 280 [15]-[19] (Handley JA, Stein and Santow JJA agreeing).
[29]See eg Matthew Collins, The Law of Defamation and the Internet (OUP, 3rd ed, 2010) 75-8 [5.24]-[5.28].
[30](1970) 72 SR (NSW) 513.
[31]Ibid 520.
Republication of defamatory matter is a related subject. Again the common law rule is that each publication of the matter gives rise to a new cause of action.[32] Where the natural and probable consequence of original publication of a defamatory statement is republication or the original publisher is otherwise responsible for a republication, damages may be sought against that publisher in respect of each republication.[33] When assessing the responsibility of an original publisher for republication, indicia such as intention and remoteness are taken into account.[34] The same assumption of republication to different persons has been made in analysis of the republication rule. But it too is not logically inconsistent with the proposition that publication to the same person by a different publisher can amount to republication and, apparently, it has not been held otherwise.
[32]See Matthew Collins, The Law of Defamation and the Internet (OUP, 3rd ed, 2010) 81 [5.35].
[33]Sims v Wran [1984] NSWLR 317, 329 (Hunt J).
[34]See generally Webb (1928) 41 CLR 331, 363-6 (Isaacs J); Slipper v British Broadcasting Corporation [1991] 1 QB 283, 296 (Stocker LJ, Slade and Bingham LJJ agreeing).
I do not accept the defendant’s implicit submission that defamatory matter, once comprehended, cannot be recomprehended. Further, resolution of the issue is not assisted by factual inquiry into the quality of the reader’s comprehension on the occasion of each reading. As long as there is comprehension on a reading, it does not matter whether it is less or more or just different than on a previous reading or readings. Assuming that a defamatory statement is comprehensible to the reader, it is comprehended each time it is read, including by the one reader. Mr Mazer downloaded and read the defendant’s website pages containing the defamatory statements about the plaintiff on several occasions. On each occasion she comprehended those statements. Accordingly, there they were published to her on each occasion.
This does not mean that each additional reading by a person of a defamatory statement that has been published only once amounts to multiple or repeated publication. Publication is a bilateral act of communication between the publisher and the reader (see above). If the publisher has published a statement only once (and is not responsible for subsequent or other publications), there is but one publication however many times a single reader may read it. When a book or newspaper containing defamatory matter is purchased, it is published when read, and not again when reread, by the purchaser. That is not because the publication has been comprehended only once but because it has been communicated only once.
It is different where the publisher has engaged in separate (or continuing) acts of publication of a defamatory statement. In such cases, the bilateral act of communication between publisher and reader is constituted by each separate (or continuing) act of publication and reading and, thereby, multiple publications to the one reader may occur. A billboard besides a highway containing a defamatory statement separately publishes the statement to each person who passes and reads the statement whether they have previously done so or not. As there are multiple (or continuing) acts of communication and comprehension, there are multiple (or continuing) acts of publication.
On evidence that the jury might accept, the defendant administered the Internet website in question, which contained matter that was allegedly defamatory of the plaintiff. It was open to Ms Mazer (and other persons) to access the website via a standard search engine. The defendant was thereby engaged in a continuing act of publication, including to persons who, like Ms Mazer, had done so previously. When Ms Mazer accessed the website and downloaded and read the page containing the first publication on 12 June 2012 and the pages containing the second publication on that date and 13 July 2012, bilateral acts of communication and comprehension occurred between the defendant and her and the statements were thereby published by him to her. This was so even though, prior to 3 April 2012, she had visited the website and downloaded and read the pages containing the statements, or statements that were not materially different. I so instructed the jury.
Conclusion
The defendant’s submission that he had no case to answer was dismissed for two reasons. First, the plaintiff’s case was not solely based upon the evidence of one witness of personal publication to her. It was also based upon a body of other evidence that the jury could accept and from which it might properly infer that persons other than the plaintiff had accessed the defendant’s website and downloaded and read pages containing the defamatory statements inside the limitation period. Second, as a matter of law, the evidence of the witness who downloaded and read pages from the website containing the statements inside the limitation period was evidence of publication to her even though she had previously downloaded and read pages containing (not materially different) statements outside that period.
The determination of the proceeding was left with the jury, who were instructed accordingly. Verdict for the plaintiff was given and, in a separate judgement, I have made an award of damages in his favour.[35]
[35]Dods v McDonald (No 2) [2016] VSC 201 (6 May 2016).
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