Nassif v Seven Network (Operations) Ltd [2021] FCA 1286
File number:
NSD 1184 of 2019
Judgment of:
ABRAHAM J
Date of judgment:
22 October 2021
Catchwords:
DEFAMATION – where numerous defamatory imputations alleged – where publication complained of was a news story broadcast by Channel Seven on “Seven News” in Sydney – consideration of whether the alleged imputations were conveyed by the publications – whether the imputations carried a defamatory meaning – where defence of contextual truth pleaded pursuant to s 26 of the Defamation Act 2005 (NSW) – where defence of fair summary of a public document pleaded pursuant to s 28 of the Defamation Act – where defence of honest opinion pleaded pursuant to s 31 of the Defamation Act
Held: application granted – imputations carried a defamatory meaning – defamatory imputations conveyed by the publications – no pleaded defence made out
DAMAGES – where first applicant claims for damage to reputation and hurt feelings – where first applicant claims aggravated damages – where second applicant claims for damages for vindication of and harm to business reputation – where second applicant a not-for-profit charity – where second applicant has not shown any economic loss or probability of economic loss
[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.
Continue reading Nassif v Seven Network (Operations) Ltd
Sign in free to access the full text
Details
AGLC
Nassif v Seven Network (Operations) Ltd [2021] FCA 1286
Case
[2021] FCA 1286
Decision Date
CaseChat Overview and Summary
The case of Nassif v Seven Network (Operations) Ltd involved a defamation claim brought by Mrs Nassif against Seven Network (Operations) Ltd and others. Mrs Nassif, who founded the charity Wiping Tears, alleged that a news report broadcast by Seven Network defamed both her and her charity. The defendants denied the claims and the case proceeded to trial. The primary legal issue before the court was whether the news report contained defamatory imputations concerning Mrs Nassif and her charity. The court considered the context of the report and whether it conveyed the alleged defamatory meanings to an ordinary reasonable viewer. The court also had to determine the appropriate quantum of damages to be awarded.
In determining the outcome, the court examined the context and content of the news report, which included references to the Nassifs' wealth, lifestyle, and property business, as well as the charity's fundraising activities. The court found that the report did convey the alleged defamatory imputations to an ordinary reasonable viewer, despite the respondents' arguments to the contrary. Regarding damages, the court noted that the charity had raised more funds in the year following the report and that the source of the charity's funds was charitable donations. The court therefore awarded nominal damages of $500 to the charity and $100,000 to Mrs Nassif. The parties were directed to agree on the form of orders or, failing agreement, to file competing draft orders with written submissions.
The court's decision was based on a detailed analysis of the context and content of the news report, as well as the evidence presented by both parties. The court found that the report did convey the alleged defamatory imputations and that the appropriate quantum of damages was nominal for the charity and $100,000 for Mrs Nassif. The case highlights the importance of considering the context of a publication when determining whether it is defamatory and the need for careful consideration of the appropriate quantum of damages in defamation cases.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Mr Seymour was an employee of the Seven Network and an agent engaged by the second respondent (Channel Seven Sydney) as a reporter during a programme known as the “Seven News”. Channel Seven broadcast the Seven News Report in Sydney.Evidence Mrs Nassif gave evidence, as did a number of witnesses, as to her reputation and that of Wiping Tears. There was also evidence from Mr Monsted, the accountant for Wiping Tears. In addition the applicant relied on a number of documentary exhibits, including an extract of Wiping Tears’ website as at April 2021, a screenshot of a post containing the Report posted to the @7NewsSydney Twitter account with comments, a screenshot of the Report posted to the 7News Sydney Facebook page, a video recording of the Report itself and extracts of the first, second and third respondents’ respective answers to interrogatories. I note at the outset that the respondents did not call any evidence. Mr Seymour did not give evidence. Mrs Nassif Mrs Nassif gave evidence that to fulfil its stated aim, Wiping Tears relies on charitable donations, which in large part are generated by activities (mainly fundraising balls) organised and executed by her, as well as from donors primarily arranged by her through her broad social network. She gave evidence that since being founded, Wiping Tears has provided financial assistance to a significant number of individuals and families within Australia and from around the world consistent with its stated charitable aim. Mrs Nassif described her background and family circumstances. She explained that her husband, Mr Nassif, is heavily involved in their Church and the Maronite Catholic Community more broadly. She said that they are extremely active in their religious community. Mrs Nassif gave evidence that it was in 2015 when she first conceptualised starting a charity after being inspired by her husband’s generosity. She said he would remind her that it is important to give back to the community as they are very blessed. The catalyst for starting Wiping Tears was an employee of her husband’s business who was diagnosed with breast cancer. Mrs Nassif described what was involved in setting up the Charity, and the assistance she was given to do so. Once the Charity was established in 2016, Mrs Nassif said she started to reach out to families which, initially, was on a full-time basis. Mrs Nassif estimates that this aspect of her charity work now consumes about two days per week but that it fluctuates. She explained the process involved in providing assistance. She said that it is only her who interacts with the families, so when there is a request for help she will visit the family to ask questions about their situation and how Wiping Tears could provide assistance. She then prepares a proposal outlining the assistance and submits it to the Charity’s committee for consideration. If the committee agrees with the proposal, Mrs Nassif sends the proposal to the beneficiary family for them to sign. If the committee does not agree, they will make edits to the proposal. Generally, the families will receive assistance within a week of Mrs Nassif first meeting them.
Decision
Reasons for decision
Given the particular evidence in this case as to the nature of the source of funds for this Charity, and that the fundraising raised more funds in the year after the Seven News Report, in my view the damages should be nominal. In respect to the Charity, I assess damages at $500. Conclusion Judgment is entered in favour of Mrs Nassif in the amount of $100,000, and in relation to Wiping Tears in the amount of $500. The parties are to liaise as to the appropriate form of orders to reflect these reasons, taking into account the remaining remedies sought by the applicants and the issue of costs. If agreement is not reached as to the terms of the orders to be made, competing draft orders should be filed, with any brief written submissions in support. .
Ratio Decidendi
Legal Principle Established
The respondents accepted in its closing submission that if the first imputation is found to have been conveyed in respect to Mrs Nassif, it is defamatory. The same concession was made in respect to Wiping Tears and the second imputation. However, the respondents submitted that in respect to the third imputation, “there could be any number of legitimate reasons for a charity to raise some money and only spend a portion of it over a period,” such that the defamatory meaning is not conveyed. The respondents submitted that “the bare suggestion that an organisation – a charity run for those purposes has raised some money and, in a period, spent a limited amount is, in my submission, simply incapable of defaming the Charity”. Consideration It may be accepted, as the respondents contended, that while context may clarify the sting of an imputation it cannot be deployed to enlarge or diminish a pleaded imputation: ABC v Chau Chak Wing at [169]-[170]. So much is uncontroversial. Nonetheless, each alleged imputation must be considered in the context of the entire article, here the entire news Report (which includes the backdrop being displayed as that aspect of the Report occurred). For example, if the narration of this aspect of the story about Wiping Tears were considered alone, it might not have the same connotation. However, when that aspect appears in the context of, and against the background of a news item which includes displays of their wealth, references to their “lavish lifestyle”, and condemnation of Mr Nassif’s property business, and is adverse to the Nassifs, a different impression is created: see for example Favell v Queensland Newspapers at [17]-[18]. The Report is inviting the viewer to adopt a suspicious approach to the subjects discussed. In that context, an ordinary reasonable viewer would ask themselves, what is the point of the story, why is the fact of the Nassifs running a charity relevant to the story, why has the Charity only spent such a small proportion of its purported money on its stated aim, and what is being done with the money raised? The respondents’ submissions approach the aspect of the Report concerning Wiping Tears with a degree of artificiality and in a manner which is inconsistent with its position in the Broadcast, given its context. The respondents also place an artificiality on the pleaded imputations which they do not have. Considering this aspect of the Report in its context is not to enlarge the imputation, but to clarify the sting of it. It may be accepted that, as the respondents submitted, the applicants have not pleaded the imputations by referring to “corrupt”, “unethical” and “fraudulent” conduct, terms used by the applicants in initial correspondence between the parties. However, that does not assist. The use of the term “false” must be considered in its context. The respondents properly accepted that a false statement is a statement that is wrong or untrue and is different to a statement that is exaggerated or a result of some kind of inactivity that the Charity is not living up to what is promised, which is the imputation they contend arises from the publication. The latter is plainly a more benign imputation.