Molan v Dailymail.com Australia Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Molan v Dailymail.com Australia Pty Ltd [2022] FCA 1004

File number: NSD 1023 of 2020
Judgment of: BROMWICH J
Date of judgment: 30 August 2022
Catchwords:

DEFAMATION – where the applicant is a prominent sports and media personality – where there are multiple online publications – whether defamatory imputations alleged were conveyed – where respondent denies all of the pleaded imputations were conveyed – held: five out of eight imputations were conveyed – first five imputations from the online article were conveyed; 6th imputation from the online article that the applicant is a racist was not conveyed; 7th and 8th imputations arising from two tweets not conveyed

DEFAMATION – defences advanced under Defamation Act 2005 (NSW) of partial justification (substantial truth) (s 25); contextual truth (s 26) and honest opinion (s 31) – held: the 2nd and 5th imputations were not proven to be substantially true – seven out of eight contextual truth imputations were not conveyed: 2nd contextual truth imputation “engaged in conduct that was likely to offend persons because of their race or ethnic origin” was conveyed – no basis for defence of honest opinion

DAMAGES – where applicant sought a substantial award of damages, including aggravated damages – whether applicant suffered reputational harm – damages awarded in the sum of $150,000 plus interest
Legislation:

Racial Discrimination Act 1975 (Cth) s 18C (1)

Defamation Act 1974 (NSW) (repealed)

Defamation Act 2005 (NSW) ss 4, 25, 26, 31, 31(5), 31(5)(a), 34, 35, 39
Cases cited:

Ali v Nationwide News Pty Ltd [2008] NSWCA 183

Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; 271 FCR 632

Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474

Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; 232 CLR 245

Domican v Pan Macmillan [2019] FCA 1384

Fairfax Digital Australia & New Zealand Pty Ltd v Kazal [2018] NSWCA 77; 97 NSWLR 547

Fairfax Media Publications Pty Ltd v Zeccola [2015] NSWCA 329; 91 NSWLR 341

Feldman v Polaris Media Pty Ltd (as trustee of Polaris Media Trust (t/as Australian Jewish News)) (No 2) [2018] NSWSC 1035

Harbour Radio v Ahmed [2015] NSWCA 290; 90 NSWLR 290

Harbour Radio Pty Ltd v Trad [2012] HCA 31; 247 CLR 31

Hayson v The Age Company Pty Ltd (No 2) [2020] FCA 361

John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164; (2005) Aust Torts Reports 81-789

JWR Productions Australia Pty Ltd v Duncan-Watt (No 2) [2020] FCA 236; 377 ALR 467

Lewis v Daily Telegraph [1964] AC 234

Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd [2022] NSWCA 150

Parmiter v Coupland (1840) 151 ER 340

Reader’s Digest Services Pty Ltd v Lamb [1982] HCA 4; 150 CLR 500

Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496

Sims v Wran [1984] 1 NSWLR 317

Slim v Daily Telegraph Ltd [1968] 2…

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Details
Case
[2022] FCA 1004
Decision Date

CaseChat Overview and Summary

In the case of Molan v Dailymail.com Australia Pty Ltd, the plaintiff, Erin Molan, sought to recover damages for defamation against the defendant, Dailymail.com Australia Pty Ltd. Molan, a prominent sports and media personality, alleged that defamatory imputations were conveyed through three publications: an online article, a tweet on Twitter, and another tweet on Twitter. The defendant denied all of the pleaded imputations were conveyed. The court was required to determine which of the eight defamatory imputations were actually conveyed through the publications and whether any defences were available under the Defamation Act 2005 (NSW).

The court found that five of the eight imputations were indeed conveyed. The first five imputations from the online article were conveyed, however, the sixth imputation, that Molan is a racist, was not conveyed. The seventh and eighth imputations, arising from two tweets, were also not conveyed. The court examined the defences of partial justification, contextual truth, and honest opinion, and concluded that the second and fifth imputations were not proven to be substantially true, and there was no basis for the defence of honest opinion. The defence of contextual truth was found to be applicable to only one of the seven remaining imputations.

Molan sought a substantial award of damages, including aggravated damages, asserting that she had suffered reputational harm. The court awarded damages in the sum of $150,000 plus interest. The court considered the evidence and found that the plaintiff had suffered reputational harm as a result of the defamatory publications.

The court made several orders, including judgment in favour of the plaintiff on the first five imputations arising from the online article, payment of $150,000 plus interest by the defendant, and leave for the plaintiff to press an application for an injunction and for the parties to make any application to vary these orders or for costs.

Orders

Orders of the court

1. Judgment be entered for the applicant in respect of the first five imputations arising from the online article published by the respondent on 5 June 2020.

2. The respondent pay the applicant $150,000 plus interest at half the pre-judgment rate of interest as at the time of judgment, within 28 days.

3. The applicant have leave to press the application for an injunction contained in the originating application dated 14 September 2020 by way of an email and draft agreed or competing procedural orders sent to the associate to Justice Bromwich within 14 days, or such further time as may be allowed.

4. The parties have leave to make any application to vary these orders, or for costs, by way of an email and draft agreed or competing procedural and any other orders sent to the associate to Justice Bromwich within 14 days, or such further time as may be allowed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

In the result, much of the evidence adduced did not need to be considered because it was directed to the substantial truth of the most serious pleaded imputation, being that Ms Molan is a racist, which I have found was not conveyed. The relevant evidence that remained has been considered at the points at which it was relevant, rather than in a detailed and separate narrative.AGREED BACKGROUND FACTS The parties cooperated by furnishing a statement of agreed background facts, and a statement of agreed factual and legal issues. The key aspects of what has been agreed are as follows, supplemented at [13] by the segment of the broadcast on 30 May 2020 that is the subject of the three publications sued upon, and also supplemented by the addition of the words of the two texts that it is agreed were sent and are in evidence. At the time of the publication of the 5 June online article, the 5 June tweet and the 6 June tweet, Ms Molan was a sports presenter and commentator employed by Nine Entertainment Co Holdings Limited. In that role, among other things, she was part of the Nine Network's Wide World of Sports team for their NRL coverage and one of the hosts of the Continuous Call Team program on Radio 2GB. Dailymail.com has been at all material times the publisher of material on its website with the URL (Daily Mail Australia Website) and material published to Twitter using the account with Twitter handle @DailyMailAU (Daily Mail Twitter Account). The following subset of Continuous Call Team program broadcasts involving Ms Molan took place on Radio 2GB between March 2017 and May 2020: The thrust of the 5 June online article deals with Ms Molan, according to that article, attempting the pronunciation of a Pacific Islander player’s name in the course of the following exchange during the Continuous Call Team program broadcast on 30 May 2020, a characterisation that is disputed. This segment and some contextual material demonstrating the nature of the program was played in open court. The following excerpt includes a few seconds or so more than the 14 seconds played in court, by including slightly more from the beginning and end of the transcribed segment for additional context: Mark Levy:… Chris [Warren], he’ll be sitting there getting ready for the football and running through all the pronunciations like he does …Erin Molan:DadMark Levy:… on a regular basisErin Molan:DadErin Molan:Hooka, Looka, Mooka, Hooka, FookaDarryl Brohman: What? I’m not sure what you said then.Erin Molan:What was the name you had to check? …The 5 June online article describes Mr Brohman’s response to have been “What? I’m not sure what she said there” but upon reviewing the recording, I consider the above to be a more accurate transcription of what was said. On 4 June 2020:(a)Ms Molan and Mr Nic White of Dailymail.com exchanged a series of text messages relating to the 30 May 2020 broadcast.(b)Mr White exchanged emails with Mr Evans of Radio 2GB relating to the 30 May 2020 broadcast.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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