September 2017

Four Million Dollar Price Tag to Fix an Actress's Reputational Damage

On September 13, 2017, Justice John Dixon of the Supreme Court of Victoria, Australia, awarded Ms. Rebel Wilson an unprecedented $4,567,472 (AUD) in damages for defamatory articles published by Bauer Media Pty Ltd. and Bauer Media Australia Pty Ltd.

Facts

Ms. Wilson, an Australian actress and star of several Hollywood movies, sued the defendants for defamation based on eight separate publications published over a three-day period. The publications labeled the plaintiff as a 'serial liar' who had 'fabricated almost every aspect of her life'. The articles were perfectly timed to coincide with the release of Ms. Wilson's successful film franchise. Ms. Wilson alleged that the conduct of the defendants resulted in her suffering financially, physically and psychologically. The libelous articles also allegedly caused her significant stress as the publications streamed into American entertainment and celebrity media and ultimately influenced industry officials and future film projects.

The Parties' Submissions

The defendants vigorously denied the plaintiff's claims and sought to cast the articles as insignificant and trivial. They raised several defences, including the defences of justification and qualified privilege.

Similar to Canadian law, under Australian law, the defence of justification is made out when a defendant proves that the defamatory meanings of the publications are substantially true. The defence of qualified privilege in Australia, similar to the defence available in Canada, can be made out if it can be proven that:

1. the recipient of the defamatory information has an interest or apparent interest in having information on some subject;
2. the matter is published to the recipient in the course of giving to the recipient information on that subject;
3. the conduct of the defendant in publishing that matter is reasonable in the circumstances.

Outcome

The Court found that the defendants were motivated by malice, and rejected the defendants' arguments. The Court ruled that the defendants published the defamatory information for purely corporate reasons i.e. to improve circulation of their media content and to increase views/hits on their web traffic (with the expectation of higher profits). The Court found as a fact that the plaintiff's reputation as an actress of integrity affected her marketability and therefore, her future job prospects. More specifically, the Court found that the defendants failed to properly investigate the allegations made against the plaintiff, and published them knowing them to be false. Furthermore, they repeated the offending allegations when they knew or foresaw that their defamatory slurs would be repeated in the entertainment and celebrity media and their conduct was orchestrated for the predominant reason to attract interest in their publications.

The defendants conduct, lacking in bona fides, gave rise to an award of aggravated damages, to which the cap on general damages in defamation proceedings in Australia (currently $389,500 AUD) did not apply.

Of importance, Justice Dixon noted at paragraph 335 of the decision in order to show the public that the plaintiff had been vindicated, a considerable award of damages was necessary for the circumstances:

Only a substantial sum in damages could convince the public that Ms. Wilson is not a dishonest person and bring home the gravity of the reputational injury established before the jury. In the full media glare, Bauer Media's defence of this case attempted to characterise its articles as true or as trivial or not likely to be taken seriously. Unless substantial damages are awarded there is a real risk that the public will not be convinced of the seriousness of the defamation, but will rather wrongly conclude that the articles were trivial or not that serious. The jury comprehensively rejected the defences and only a substantial damages award can now vindicate the plaintiff.

Ms. Wilson was awarded the following:

• $650,000 in general damages, including aggravated damages; and
• $3,917,472 in special damages for the plaintiff's opportunity for new screen roles lost by reason of the defendants' publications.

This recent judgment has reverberated discussions regarding defamation law and appropriate awards at home and abroad.

Conclusion

The law of defamation is concerned with the protection of personal reputation on one hand and the societal protection of freedom of expression on the other hand. The protection of a person's reputation is indeed worthy of protection in a democratic society, but it must be carefully balanced against the equally important right of freedom of expression.

Today, with the advent and proliferation of the internet and various mediums of social media, blogging and "online news", the risk of damaging one's reputation is significantly higher given the expeditious nature in which online information can spread worldwide and reach ‘viral' status. As seen with this case, the harm caused was not isolated to the publisher's region. Although no two cases are exactly alike, and notwithstanding that Australia is a different jurisdiction, it still shares many similar principles with Canadian law and all companies/individuals, whether in the media industry or not, should be aware that, in appropriate instances where the communications are deemed to be malicious, the damages awarded may be significant.

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