Eshow v Bishop Mar Meelis Zaia
[2019] VSC 465
•23 July 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2017 02842
| SARGON ESHOW | Plaintiff |
| v | |
| BISHOP MAR MEELIS ZAIA | Defendant |
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JUDGE: | McDonald J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 and 18 June 2019 |
DATE OF JUDGMENT: | 23 July 2019 |
CASE MAY BE CITED AS: | Eshow v Bishop Mar Meelis Zaia |
MEDIUM NEUTRAL CITATION: | [2019] VSC 465 |
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TORTS – Defamation – Publication – Online publication of Facebook posts – Whether the defendant published the Facebook posts – No meaningful challenge to the defendant’s denial of any involvement in publication – Failure to prove publication by the defendant – Claim for damages dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the plaintiff | In person | |
| For the defendant | Mr A Macauley | Mason Black Lawyers Pty Ltd |
HIS HONOUR:
The plaintiff alleges that he was defamed by three Facebook posts made by the defendant on 26 January 2017. The defendant is the head of the Australian, New Zealand and Lebanon Diocese of the Holy Apostolic Catholic Assyrian Church of the East (‘Assyrian Church’). The primary issue in the present proceeding is whether the defendant published the Facebook posts. I have concluded that the plaintiff has not established that the defendant did publish the Facebook posts. As a result, his claim must be dismissed.
The Facebook posts
The three Facebook posts were accurately described in the defendant’s submissions:
The first post consisted of a photograph of Mr Eshow seated on a couch. The photo had been altered to display (what appears to be) a hand-drawn halo or aureole around Mr Eshow’s head and a hand-drawn cross through Mr Eshow’s face. Additionally, the words “church reformer” were scrawled (in handwritten Arabic) across the portion of the photo displaying Mr Eshow’s torso. The text accompanying the photo by the relevant profile user (claiming to be Mar Meelis Zaia) in the Facebook post section read (on the translation supplied, adopting the proposed intended meanings proffered by the translator):
“Look at his face, what do you feel? Don’t you feel as if you’re seeing a devil? He is the devil himself in human form, as the devil does not come from nothing! He uses others to worship him, including Sargon Eshow who is in the photo. Watch out for him because he is abnormal. He knows about that better [than anyone else] and he wants to be a church reformer. What a funny person you are Sargon.”
The second post consisted of a portrait photograph of Mr Eshow. That photo had, again, been altered so that it contained a hand-drawn cross through Mr Eshow’s face and the words “no shame” handwritten in English. The text accompanying the photo by the relevant profile user in the Facebook post section read (on the translation supplied, adopting the proposed intended meanings proffered by the translator):
“Sargon Eshow is a character that became prominent into a milieu void of religious as well as social awareness as all those who are on his friends’ list have prior convictions like him. They rebel, they complain they do not carry inside themselves any Christian seed. Sargon claims himself to be a reformer of the Assyrian Church, as we know reformers have new ideas because they are [the ideas] beyond comprehension in application. Sargon has nothing but Audish Al-Soubawi and so and so, X screamed and yelled and so and so and I will expose X. He asks people even those who are outside the Assyrian Church who have any information or scandal about any member of the clergy[:] [“]send it to me and I shall publish it[”] … Indeed you are shameless Sargon. A person whose aim is reformation, this is not the way to reform the church. Fix yourself before you try to fix the church. The only thing the church needs is the removal of impurities like yourself Sargon.”
The third post also consisted of a photograph and accompanying text. The photo posted appears to be that of Hassan Nasrallah, the current Secretary General of Hezbollah, although the photo appears to have been altered so as to adorn Hassan Nasrallah with an eye-patch over his right eye. In the photo there is also several pieces of typed Arabic text, namely (on the translations supplied): (a) “unquestionably, the party of Satan – they will be the losers”, with a reference to “Al-Mujaadila Surah Verse 19”: (b) “Sargon in the future”; and (c) “the Satan Party”. The text accompanying the photo by the relevant profile user in the two Facebook post sections read (on the translation supplied, adopting the proposed intended meanings proffered by the translator):
“Sargon is merely a card in the hands of somebody else. He calls for reforming the church. What a silly reformer you are Sargon.”
And
“Do not join the Sargonian resistance otherwise you will end up like Nasrallah lololololo.”[1]
[1]Defendant, ‘Outline of Opening Submissions’, 13 June 2019, [5]–[9] (emphasis in original). See also Exhibit G three Facebook posts of 26 January 2017 together with translation.
In his defence to the plaintiff’s amended statement of claim, the defendant denied that he published or authorised the publication of the Facebook posts.[2] From the time the defence was filed, it was clear that the issue of whether the defendant published the Facebook posts would be a contested issue in the litigation. Neither party led expert evidence regarding the operation of Facebook accounts.
[2]Defendant, ‘Defence to the Amended Statement of Claim’, 15 May 2018, [3].
Whether the Facebook posts could have been posted by an anonymous third party who had created a fake account in the defendant’s name, together with a profile using the defendant’s image, was not contentious. Both Mr Eshow, who appeared on his own behalf, and Mr Macauley, who appeared for the defendant, accepted that it is possible for an anonymous third party to create a fake Facebook profile.[3]
[3]Transcript of proceeding (17 June 2019) 4.24–4.26.
On 23 January 2017, Mr Eshow posted a reply on Facebook to posts made by ‘Roger Malko’:[4]
Dear Friends,
This person made a fake account with nothing on it and began terrorising me. Speak whatever you want to say but honestly the least you could do is show your true identity. Hiding behind a fake account and doing nothing but talking shit all day.[5]
[4]Exhibit C bundle of Facebook posts commencing 30 March 2015 and concluding 26 January 2017.
[5]Ibid.
Thus it is clear that, immediately prior to 26 January 2017, an anonymous third party was posting derogatory comments regarding the plaintiff via a fake Facebook account.
The fact that the three Facebook posts appeared under the profile ‘Mar Neelis Zaia’ alongside a photograph of the defendant does not, of itself, establish on the balance of probabilities that the posts were made by the defendant. Indeed, when the plaintiff first saw the Facebook posts on 26 January 2017, he initially believed that, although appearing under the profile of the defendant, they had been posted by an anonymous third party.[6]
[6]Transcript of proceeding (18 June 2019) 194.15–194.19.
Immediately after viewing the posts on 26 January 2017, Mr Eshow posted a reply on Facebook:
To the owner of this facebook,
You really make me laugh.
You open a new Facebook page at night, close it by day, and these photos prove your character[7]
[7]Exhibit C bundle of Facebook posts commencing 30 March 2015 and concluding 26 January 2017.
It was only when the plaintiff saw that the post had been ‘liked’ by a friend of the defendant, Mr Matthew Haddad, that he concluded that the post was genuine.[8] Mr Haddad’s unchallenged evidence was that he viewed the post through the Facebook account of a Facebook friend.[9] He did not see the post on the Facebook account of the defendant. He has never been a Facebook friend with the defendant.[10] Prior to 26 January 2017, he had never seen the defendant post anything on Facebook.[11] After 26 January 2017, he has never seen the defendant post anything on Facebook.[12] Initially, Mr Haddad thought the post was genuine[13] but, immediately after liking the post, he realised that it was not genuine because he knew that the defendant did not use Facebook.[14]
[8]Transcript of proceeding (18 June 2019) 194.21–194.30.
[9]Transcript of proceeding (17 June 2019) 96.12–96.19.
[10]Ibid 93.29–93.30.
[11]Ibid 99.29–99.31.
[12]Ibid 100.1–100.2.
[13]Ibid 102.24–102.25.
[14]Ibid 102.26–102.31.
Mr Eshow submitted that, notwithstanding the defendant’s denial that he has ever had a Facebook account, I should conclude that he did publish the posts on 26 January 2017. I reject this submission. The defendant presented as an entirely credible witness. His denial that he was involved in publishing the Facebook posts was not meaningfully challenged. The high point of the plaintiff’s challenge to the defendant’s denial of publication occurred when the plaintiff asked the defendant:
Could you have taken our dispute personally and in your frustration accidentally post the three disparaging Facebook post on 27 [sic] January 2017, before realising your error and deleting your entire Facebook account?[15]
[15]Transcript of proceeding (18 June 2019) 159.19–159.23.
In response, the defendant gave evidence that he does not and has never had a Facebook account.[16] The plaintiff did not put to the defendant that this evidence was false.
[16]Ibid 159.23–159.26.
The plaintiff submitted in his written submissions that the defendant had published the posts ‘in a fit of rage’ and had ‘lashed out’ against him by publishing the disparaging posts.[17] It was not put to the defendant during cross-examination that he published the Facebook posts when lashing out at the plaintiff in a rage. Rather, as set out above, it was put to the defendant that he published the posts accidentally.
[17]Plaintiff, ‘Outline of Submissions’, 13 June 2019, [21].
The plaintiff attempted use the current proceeding as a vehicle for airing grievances which he has raised in the past concerning the Assyrian Church. He sought to raise issues of:
·Alleged non-compliance with the Australian Charities and Not For Profits Commission Guidelines as a result of the support of a political candidate by the Assyrian Church;
·Alleged links between the defendant and a deceased convicted criminal, Mr Karl Suleman;
·Breaches of Synod rules resulting from the appointment of ‘defrocked priests’;[18] and
·Breaches of the constitution of the Assyrian Church.
[18]Transcript of proceeding (17 June 2019) 114.03–114.06.
During the course of the hearing on 17 and 18 June 2019, I informed the plaintiff that he could not cross examine the defendant regarding alleged misconduct by the defendant, unless he could link such conduct to the alleged publication of the Facebook posts. It is not the function of the Court to sit as a de facto Royal Commission into the Assyrian Church. Rather, the Court’s task is to determine whether, as alleged by the plaintiff, the defendant published the Facebook posts. The plaintiff failed to establish any nexus whatsoever between allegations of misconduct and the publication of the Facebook posts. There is no evidentiary foundation to support a finding that the defendant was motivated to publish the Facebook posts by way of retaliation against the plaintiff because of grievances which the defendant raised in the past.
Further, by reason of the content of the Facebook posts and the timing of their publication, it is highly improbable that the posts would have been published by the defendant.
The third Facebook post features a picture of Mr Hassan Nasrallah wearing an eyepatch in the style of a pirate.[19] Blood is dripping from his mouth. The bottom left hand corner of the picture has the caption ‘the Satan Party’.[20]
[19]Defendant, ‘Outline of Opening Submissions’, 13 June 2019, [7]–[9]. See also Exhibit G three Facebook posts of 26 January 2017 together with translation.
[20]Ibid.
As the Archbishop of the Diocese of Lebanon, in addition to being head of the Assyrian Church in Lebanon, by Presidential decree the defendant holds the secular position of leader of the Assyrian community in Lebanon.[21] Mr Nasrallah is both the spiritual leader of Shiite Muslims in Lebanon and the political leader of Hezbollah.[22]
[21]Transcript of proceeding (18 June 2019) 131.27–132.02, 134.03–134.23.
[22]Ibid 133.25–134.02.
The defendant is ‘very, very careful’ in how he deals with Mr Nasrallah.[23] He described the situation between the Christian-populated eastern Beirut and the Muslim-populated western Beirut as ‘very tense’.[24] The defendant has to be very careful in how he deals with Hezbollah in order to maintain peace.[25] The defendant stated that it would be ‘crazy’[26] and ‘suicidal’[27] for him to make a satirical posting of Mr Nasrallah. This evidence was unchallenged. I accept Mr Macauley’s submission that it is highly improbable that the defendant would have published a Facebook post ridiculing Mr Nasrallah.
[23]Ibid 132.15.
[24]Ibid 132.20.
[25]Ibid 132.22–132.25.
[26]Ibid 132.25.
[27]Ibid 132.17.
The three Facebook posts were allegedly posted by the defendant on 26 January 2017. On 27 March 2017, McCallum J in the Supreme Court of New South Wales heard a defamation claim by the defendant against Mr Eshow. The claim was based on a series of Facebook posts made by Mr Eshow between March and December 2015. McCallum J awarded the defendant in the present proceeding damages in the sum of $150,000.[28] It is highly improbable that, two months prior to the commencement of a defamation trial based on Mr Eshow’s defamatory Facebook posts, the defendant would himself have made defamatory Facebook posts in respect of the plaintiff.
[28]Zaia v Eshow [2017] NSWSC 1540.
The Assyrian Church has approximately 38,000 members in Australia.[29] Approximately 7,000 members reside in Victoria.[30] Mr Eshow accepted that there are many members of the Assyrian Church community who do not agree with his unfavourable opinion of the defendant.[31] He also accepted that there are many members of the Assyrian Church community who might have posted the three derogatory Facebook posts.[32]
[29]Transcript of proceeding (18 June 2019) 135.16–135.20.
[30]Ibid.
[31]Ibid 199.28–200.01.
[32]Ibid 200.02–200.12.
It is not necessary for the Court to express any concluded view as to who is likely to have published the three Facebook posts. I accept the defendant’s evidence that he did not publish or authorise the publication of the three Facebook posts.
In order to succeed in a claim for defamation, the plaintiff must prove that the act of the defendant has caused the defamatory material to be comprehended by somebody other than the plaintiff thereby causing damage to the plaintiff’s reputation.[33]
[33]Sims v Jooste (No 2) [2016] WASCA 83, [9] (Martin CJ, Buss JA and Mitchell J agreeing).
The onus is on the plaintiff to prove publication.[34] The plaintiff has failed to establish that the defendant published the three Facebook posts. His claim for damages must therefore be dismissed. I shall provide the parties with an opportunity to make submissions on the costs of the proceeding.
[34]Bruton v Estate Agents Licensing Authority [1996] 2 VR 274, 295 (Batt J).
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