Big Broadcasts, International Defamation Lawsuit Damages Awards

June 18, 2024





Even in the face of objective data, reality is not always easily perceived. Deception, fiction, and spin are tactics used to tell stories so that they match the needs of the intended audience. These needs range from simple entertainment to a sense of security, the reinforcement of political beliefs, assuaging fear, or confirming assumptions as accurate. Whatever they are, when these needs are met, the story—as opposed to what really happened—becomes reality.

Thus, “viral” is not an accident. Viral stories exist because they satisfy a human need, which makes them stick. The real problem comes when the story told is intended to control or influence others in an unfair or unscrupulous way. The result is defamation, a malicious or negligent statement, purporting to be fact and distributed to a third party, that injures a person’s or organization’s reputation. Since these falsehoods stated as fact are stickier than truth and based on meeting human needs, defamation lawsuits are, sadly, an international phenomenon.

Article 19 of the United Nations International Covenant on Civil and Political Rights states:

  1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor unlawful attacks on his honor and reputation.
  2. Everyone has the right to the protection of the law against such interference or attacks.

The internet’s growing accessibility, combined with a global reach not constrained by geography or time zone, increases the potential damage caused by unlawful “interference” and “attacks on honor and reputation”. Fortunately, the following international defamation lawsuits’ damage awards reflect this fact. Whether committed through email, website, social media platform, structured online campaign, or digital posting of chapters from a story, courts in Canada and Australia awarded internet defamation damages to console plaintiffs for emotional distress, repair harm to their reputations, and vindicate their character.

The same methodology was applied to defamation distributed through traditional channels. Courts recognized that publishing allegations of hiding financial assets in offshore accounts, stating an individual is a murder suspect during a press conference, and intentionally misrepresenting fiction as fact on broadcast radio ruined lives and destroyed businesses. This left awarding defamation damages as the only remedy.

What may be most important in the subsequent cases is the method these courts used in determining damages, as quantification potentially presents unique and complicated issues. The courts leveraged the following considerations when determining award amounts:

  • plaintiff’s standing and status in society.
  • seriousness of the defamatory statements.
  • distributive reach and multiplicative effect of the channel.
  • evidence of a retraction or apology.
  • motive of the defendant.
  • aggravating or mitigating circumstances, i.e., presence as a conspirator.
  • plaintiff’s loss of opportunity because of defamation.

Speaking to loss, international defamation lawsuit awards reflect the common theme that damages in defamation cases are assumed if publication is evidenced; the plaintiff does not have to show a specific loss.

Canada

  1. McNairn v. Murphy, 2017, ONSC 1678 (CanLII)

Facts:

An Ontario court recently rendered a decision where defamation was caused by sending a defamatory email to 37 individuals. The court stated:

“Communications via the Internet such as email, are potentially more pervasive than other forms of communication since control over its distribution is lost and numerous people may have access to it [and an] email containing a defamatory statement may be sent by [a] recipient to others who in turn may send it to an even a larger audience. The Internet has the extraordinary capacity to replicate a defamatory statement, in [its] sleep. As a result, the mode in extent of publication, is [a] particularly significant consideration in assessing general damages [in] Internet defamation cases.”

In awarding damages against two defendants, the court noted that damages in defamation cases are assumed if publication of defamatory statements is evidenced, assuming there are no defenses. The defamed individual need not show any specific loss. General damages in defamation cases can serve three functions:

  • to console the plaintiff for the distress suffered in the publication of the defense.
  • to repair the harm to the plaintiff’s reputation including, where relevant, business reputation.
  • to vindicate the plaintiff’s reputation.

The court applied the following six factors in determining general damages in defamation cases:

  • plaintiff’s positioning and standing.
  • nature and seriousness of the defamatory statements.
  • mode or type of publication.
  • absence or refusal to retract or apologize for the statements.
  • conduct and motive of the defendant.
  • presence of aggravating or mitigating circumstances.

Quantum of Damages

Total: $160,000 CAD

  1. Paramount v. Kevin J. Johnston, 2019 ONSC 2910

Facts:

The plaintiffs Paramount Fine Foods (Paramount) and Mohamed Fakih (Mr. Fakih) brought this motion against the defendants, Kevin J. Johnston (Mr. Johnston) and FreedomReport.ca (Freedom Report).

The court described the defendant as a self-styled journalist and owner of FreedomReport.ca, YouTube channels, Twitter and Facebook accounts, and other social media channels and websites. Paramount alleged defamatory information was published through these channels resulting in damages that included the loss of a contract.

Without breaking the damages down into separate headings, the court characterized the central defamatory accusation as:

“…about as serious and damaging an allegation as can be made in these times.”

Quantum of Damages

General, Aggravated, Punitive, and Special

Total: $2.5 million CAD

  1. Rutman v. Rabinowitz, 2016 ONSC 5864

Facts:

This case is recognized as one of the most important cases in internet defamation law. Two businessmen, Moishe Bergman and Saul Rabinowitz, appealed various parts of an Ontario Superior Court judgment that found them liable for an internet campaign that had defamed a former businesses associate, Ronald Rutman.

While one of the appellants admitted liability for defamatory statements, the defendants claimed that the damages awarded were unjustified and too high. The Court of Appeals’ decision dismissing the appeal found that the “pernicious effects” of internet defamation distinguishes it from defamation in other mediums when it comes to awarding damages.

The internet campaign started in 2008 after a dispute concerning control of a business Rutman owned and for which the two defendants worked. The campaign involved anonymous emails Rabinowitz sent to Rutman’s business partners and associates. According to the decision, the correspondence included defamatory statements that he was being investigated for money laundering and tax fraud. Rabinowitz also posted negative reviews about Rutman on an Internet bulletin board that described the plaintiff as “a thief” who “deserves to be behind bars”.

The court stated the damage award:

“…must take account of the unique and somewhat insidious nature of internet defamation.”

“You don’t know who it might have affected, what business you might have lost or who might think differently about you, because you don’t know who has seen the posts.”

The court also realized that it was not necessary to find Bergman as an active participant in the defamation to find him liable. It was emphasized that Bergman was:

“…[k]nowingly assisting, encouraging or merely being present as a conspirator at the commission of the wrong,” according to The Law of Torts by John Fleming, which was cited in the decision.

“It confirms that, in connection with defamatory activity, you don’t have to directly participate in making the defamatory statements to be liable for them.”

Quantum of Damages

General: $200,000 CAD

Aggravated: $200,000 CAD

Punitive: $300,000 CAD

  1. Nazerali v. Mitchell 2016 BCSC 810

Facts:

In 2011, a series of articles or chapters forming a work titled The Miscreants’ Global Bust-Out, authored by Mark Mitchell, were published by Patrick Byrne on a website that was owned by Deep Capture LLC. Within several chapters of this work, there are multiple derogatory and defamatory references to Altaf Nazerali.

Nazerali is a businessman whom the trial judge described as “sophisticated and intelligent […] with wide connections in the business world and throughout his religious community.”

Upon learning of this publication, Nazerali contacted the author and tried to get the work corrected. That proved unsuccessful. Nazerali then filed a libel suit.

The judgment stated that the defendants, Mitchell, Byrne, and Deep Capture LLC, engaged in a calculated and ruthless campaign to inflict as much damage as they could on Nazerali’s reputation. Their intention was to portray him in a false light, whereby the truth about Nazerali himself was of no interest or consequence. The defamatory words severely damaged the plaintiff’s reputation. Furthermore, rather than retracting or toning down their extravagant language once they were sued, the defendants chose to increase their abusive communication with a new narrative defined by multiple allegations of serious misconduct.

The judge held that Mitchell and Byrne demonstrated “an indecent and pitiless desire to wound”. The court also issued a permanent injunction.

Quantum of Damages

General: $400,000 CAD

Special: $55,000 CAD

Aggravated: $500,000 CAD

Punitive: $250,000 CAD

  1. Gouin V. White, 2013 ABQB 332

Facts:

The plaintiff sued the defendants over a publication that alleged the plaintiff had stashed millions of dollars in foreign banks.

The Alberta Queen’s Bench awarded total damages of $600,000 CAD after assessing the damages. Their reasoning included:

"The circumstances of this case, specifically, the gravity of the defamatory statements, the repetition of the defamatory statements, the period of time over which the statements have been repeated, and the breadth of the publication and republication, warrant an award of general damages, in favour of each of the [plaintiffs], at the high end of the general damages spectrum for defamation."

The Court awarded each of the two plaintiffs a total of $100,000 general damages for defamation in each of the two actions: totaling $400,000. The court also awarded each plaintiff $50,000 punitive damages in each of the two actions: totaling $200,000.

Quantum of Damages

General: $400,000 CAD

Punitive: $200,000 CAD

Australia

  1. Wilson v. Bauer Media Pty Ltd [2017] VSC 521

Facts:

Bauer Media published various articles on their website stating the plaintiff Rebel Wilson lied about both her age and upbringing, the timing of which prevented Wilson from obtaining lead roles in Hollywood movies.

The court established the articles published were defamatory in nature and caused reputational and loss of opportunity, the latter of which constituted the special damages.

Quantum of Damages

General: $650,000 AUD (including aggravated)

Special: $3.9 million AUD (loss of opportunity)

After appeal: $600,000 AUD

  1. Rayney v. The State of Western Australia [No9] [2017] WASC 367

Facts:

Corryn Rayney was found murdered in Kings Park, Perth. Detective Senior Sergeant Jack Lee (“DSS Lee”) held several press conferences to discuss the ongoing police investigation.

On September 20, 2007, during one such press conference, DSS Lee stated the police department believed that Corryn Rayney’s husband, Lloyd Rayney, was responsible for her death. Specifically, Lee stated Rayney was the “… only suspect at this time …” and “… he is the primary person of interest.”

In 2010, DSS Lee repeated that Rayney was the only and primary suspect before charging Rayney with murder.

The plaintiff sued for defamation, stating that the press conference held by DSS Lee, in conjunction with three previous press conferences, conveyed the defamatory imputation that he had killed Corryn, or at least acted in such a way as to give rise to a reasonable suspicion that he had.

The court analyzed the words used by DSS Lee in the press conference. It concluded that the detective went beyond the evidence he had at the time and his words left an impression for any reasonable person that Lloyd Rayney had committed the murder of his wife.

J. Chaney of the Supreme Court of Western Australia found in favor of Rayney and acquitted him of all charges.

Non-economic loss damages were awarded to vindicate both the defamation’s impact on Rayney’s personal and business reputation, as well as his personal distress.

Quantum of Damages

Non-economic Loss: $600,000 AUD

Actual Loss: $70,000 AUD

  1. Wagner & Harbour Radio Pty Ltd & Ors

Facts:

Denis, John, Neill and Joe Wagner, four brothers, claimed that the radio host Alan Jones defamed them in a series of broadcasts on his popular talk radio show between October 2014 and August 2015. The Wagners pointed to 32 separate broadcasts where Jones discussed the devastating flooding which occurred in the Lockyer Valley in 2011. Specifically, he referenced the death of 12 people in the small town of Grantham, 100 km west of Brisbane. The court found that the broadcasts were in fact defamatory, and damages were subsequently awarded.

Quantum of Damages

Defamation: $937,747 AUD

Total: $3.7 million AUD

  1. Douglas v. McLernon [No 4] [2016] WASC 320

Facts:

Terence McLernon made numerous posts on various websites about Oliver Douglas. The court determined McLernon engaged in defamation by falsely publishing that the plaintiff had, among other things, threatened women and children, associated with criminals, committed—and was convicted of—criminal offenses, stole money, and engaged in fraud and corruption. Damage awards included aggravated damages.

Quantum of Damages

Total: $700,000 AUD

  1. Reid v. Dukic [2016] ACTSC 344

Facts:

Heather Reid was the CEO of Capital Football for 12 years before standing down in April 2016. She sued Stan Dukic, a soccer coach, over nine defamatory posts published between January and December 2015. She pleaded a host of imputations involving fraud, dishonesty, theft, incompetence, negligence, racism, gender bias, and nepotism. Dukic removed all the posts on February 12, 2016. In this case the court observed:

“… social media publications have a tendency to spread. I agree that the evidence in the present case established that the defendant’s posts were not confined to a small pool of people, but had infiltrated, at the least, the wider community.”

Quantum of Damages

General: $160,000 AUD

Aggravated: $20,000 AUD

With growing digitalization of the world today, more and more cases of defamation are sure to come up. Cases of internet defamation tend to be nebulous and hard to prove without dispute. Before walking down the legal lane, assessing all options is important and one would be well suited to confer with an expert before making the decision. Defamation law has many variants, differing across countries. The damages awarded in such cases also depend on a number of factors including the severity of the defamation, geography, case precedence, and intent of malice. Hence, if filing a lawsuit is the route you

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Jenevieve Moulin

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