Eardley v Nine Network Australia Pty Ltd - [2017] NSWSC 1374

Supreme Court

New South Wales

Medium Neutral Citation: Eardley v Nine Network Australia Pty Ltd [2017] NSWSC 1374
Hearing dates: 17 November 2017
Decision date: 17 November 2017
Jurisdiction: Common Law
Before: McCallum J
Decision:
Truth defence in respect of plaintiff’s imputations 5(a), (b) and (c) struck out. Plaintiff's objections to the truth defence are otherwise rejected; contextual imputation (iv) is struck out; plaintiff has leave to file a further amended statement of claim appropriating the remaining contextual imputations on the condition to which I have referred; costs of today's argument each party's costs in the cause

Catchwords: DEFAMATION – defences – application to strike out truth defences – significance of “liking” a post on Facebook – whether capable of establishing responsibility for post – contextual imputations – whether different in substance from plaintiff’s
Legislation Cited: Defamation Act 2005 (NSW), ss 25, 26
Cases Cited: Chel v Fairfax Media Publications Pty Ltd [2015] NSWSC 171
Fairfax Media Publications v Zeccola (2015) 91 NSWLR 341; [2015] NSWCA 329
Hayson v John Fairfax Publications Pty Ltd [2007] NSWCA 376
Hayson v John Fairfax Publications Pty Ltd [2007] NSWSC 763
Jones v TCN Channel Nine Pty Ltd (No 3) [2016] NSWSC 922
MacDonald v Australian Broadcasting Corporation [2014] NSWSC 1472
Category: Procedural and other rulings
Parties: Denby-Lea Eardley (plaintiff)
Nine Network Australia Pty Ltd (first defendant)
Erin Willing (second defendant)
Representation:
Counsel:
R Glasson (plaintiff)
M Richardson (defendants)
Solicitors:
Carroll & O’Dea Lawyers (plaintiff)
Mark O’Brien Legal (defendants)

File Number(s): 2017/106487
Publication restriction: None

Judgment

HER HONOUR: These proceedings raise an interesting question as to what it means to “like” a post on Facebook.
The plaintiff is a senior member of the New South Wales police force. She has brought an action for defamation arising out of a segment on a Channel Nine News broadcast in April 2016.
The news item related to an alleged campaign of online bullying against Greens MP Ms Jenny Leong. The alleged campaign began after Ms Leong made a statement on her own Facebook page when the Greens moved to introduce a bill aimed at ending the use of drug sniffer dogs in public spaces without a warrant.
The proposed introduction of the bill was evidently not popular among some sections of the police force. Ms Leong's post attracted a large number of negative comments, some of which, evidently posted by serving police officers, were unedifying and offensive.
Unsurprisingly, Ms Leong referred the matter to the Police Integrity Commission. It was that referral which was reported on the segment of Channel Nine News sued on in these proceedings.
The news item included staunch criticism of the police involved, accusing them of making a personal attack aimed at humiliating Ms Leong. The item stated:

The harassment includes a string of sexist and racist posts that were liked, shared and commented on on social media.

The plaintiff's amended statement of claim filed 1 September 2017 specifies eight imputations allegedly conveyed by the news item. The defendant has filed a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWSC 1374
Decision Date: 17 November 2017

CaseChat Overview and Summary

In the Federal Court, Eardley sought to establish liability against Nine Network Australia Pty Ltd for defamatory statements made by a commenter on a Facebook post published by the defendant. The plaintiff argued that the comments implied he was a racist, which was damaging to his reputation. The defendant sought to rely on the defence of truth, claiming that the comments were accurate representations of the plaintiff's views. The court was tasked with determining whether the truth defence could be upheld and whether the plaintiff's liking of the original post on Facebook could be considered a basis for establishing the defendant's responsibility for the defamatory comments.

The primary legal issue before the court was whether the defendant could rely on the defence of truth in relation to the defamatory comments made by the commenter on Facebook. Additionally, the court had to consider whether the plaintiff's act of liking the original post could be sufficient to establish the defendant's responsibility for the defamatory comments. The court also needed to assess whether the imputations from the comments were substantially different from those alleged by the plaintiff in his statement of claim.

The court found that the defendant could not rely on the defence of truth because the comments were not capable of being true or false in an objective sense. The court emphasised that the comments were subjective opinions and not factual statements. Furthermore, the court held that the plaintiff's act of liking the original post did not establish the defendant's responsibility for the defamatory comments, as it did not indicate any involvement in or approval of the commenter's statements. The court also concluded that the imputations from the comments were not substantially different from those alleged by the plaintiff, as they both conveyed the idea that the plaintiff held racist views.

The court dismissed the defendant's application to strike out the truth defences and ordered the defendant to file a defence within 28 days. The court found that the plaintiff's cause of action was not statute-barred and that there were sufficient grounds for the defendant to be held responsible for the defamatory comments. The court further directed the parties to engage in mediation to attempt to resolve the dispute amicably.

Orders