tag:theconversation.com,2011:/us/topics/rebel-wilson-43186/articlesRebel Wilson – The Conversation2020-07-28T08:22:45Ztag:theconversation.com,2011:article/1435322020-07-28T08:22:45Z2020-07-28T08:22:45ZAustralia’s ‘outdated’ defamation laws are changing - but there’s no ‘revolution’ yet<figure><img src="https://images.theconversation.com/files/349861/original/file-20200728-27-1brq2w8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">NSW Attorney-General Mark Speakman.</span> <span class="attribution"><span class="source">AAP/Joel Carrett</span></span></figcaption></figure><p>Australia’s defamation laws, so long criticised to so little avail, are finally changing. </p>
<p>New South Wales Attorney-General <a href="https://www.dcj.nsw.gov.au/news-and-media/media-releases/nation-agrees-to-nsw-led-defamation-revolution">Mark Speakman</a> trumpeted this week:</p>
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<p>Nation agrees to NSW-led defamation revolution.</p>
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<p>His announcement followed <a href="https://www.ag.gov.au/sites/default/files/2020-07/Council%20of%20Attorneys-General%20communiqu%C3%A9%20%E2%80%93%20July%202020.pdf">July’s meeting</a> of the <a href="https://www.ag.gov.au/about-us/committees-and-councils/council-attorneys-general-cag">Council of Attorneys-General</a>, where all Australian jurisdictions approved <a href="https://pcc.gov.au/uniform/2020/Model_Defamation_Amendment_Provisions_2020.pdf">amendments to the Model Defamation Provisions</a>.</p>
<p>Australian defamation law is made up of several components. A large part of it is common law, inherited from England and developed by Australian judges over many decades. Our common law heritage was modified through statutes in each of the states and territories, including the “<a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1307421.">uniform defamation laws</a>”.</p>
<p>The <a href="https://pcc.gov.au/uniform/2020/Original_Model_Defamation_Provisions_2005.pdf">Model Defamation Provisions</a> are a template of sorts, which underpin each of the statutes comprising the uniform defamation laws.</p>
<p>These changes to the Model Defamation Provisions are a long time coming. They haven’t been amended since 2005 – back when Facebook was only a year old and Twitter did not even exist. The first iPhone would not be released until 2007. The way we communicate and consume information has fundamentally changed since these laws were drafted.</p>
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Read more:
<a href="https://theconversation.com/australias-proposed-defamation-law-overhaul-will-expand-media-freedom-but-at-what-cost-128064">Australia’s proposed defamation law overhaul will expand media freedom – but at what cost?</a>
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<p>As a result, defamation litigation has changed too. <a href="https://www.uts.edu.au/sites/default/files/article/downloads/Trends%20in%20Digital%20Defamation_0.pdf">Courts are hearing</a> far more “backyard” defamation disputes - including fights over silly stuff on social media - than they once did.</p>
<p>So it’s trendy to say defamation law is “outdated”. This ignores the work courts have done to ensure your reputation continues to receive some protection as technologies and society change. These days, a hurtful lie can spread like wildfire and destroy a person.</p>
<p>Remember: a big chunk, or even most of defamation law, is made by judges. That won’t change.</p>
<p>I’m not convinced these new <a href="https://pcc.gov.au/uniform/2020/Model_Defamation_Amendment_Provisions_2020.pdf">provisions</a> will really “modernise” defamation law. They are certainly no “revolution”.</p>
<h2>What has changed?</h2>
<p>We have known about the bulk of the changes for a while. Most of them were <a href="https://www.ag.gov.au/sites/default/files/2020-03/Council-of-Attorneys-General-communique-November-2019.pdf">on the table in November 2019</a>.</p>
<p>Highlights include </p>
<ul>
<li>a new “serious harm” requirement</li>
<li>some new defences, including a new “public interest” defence</li>
<li>amendments to the way damages for certain kinds of nasty reputational damage are capped</li>
<li>a new approach to limitation periods that takes account of the fact content remains online for years.</li>
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<h2>Traditional media organisations are the real winners</h2>
<p>By “traditional media”, I mean the entities behind Australia’s newspapers, magazines and television stations, and associated online platforms.</p>
<p>Traditional media are typical defendants to defamation litigation. Risqué content engages readers and makes money. It also means defamation risk. Competing within a 24-hour news cycle means some companies jump to press too hastily, damaging reputations in the process. They may end up paying substantial sums of money to defamed persons by way of damages – for example, <a href="https://www.abc.net.au/news/2020-07-02/daily-telegraph-loses-defamation-appeal-in-geoffrey-rush-case/12414536">Geoffrey Rush’s almost A$2.9 million victory</a> against the publisher of The Daily Telegraph.</p>
<p>So traditional media have an incentive to lobby for more “media freedom”, which includes stronger weapons to fend off defamation cases. Their <a href="https://yourrighttoknow.com.au/media-freedom/get-the-facts/">recent lobbying</a> paid off with a new public interest defence.</p>
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<img alt="Actor Geoffrey Rush and his wife Jane Menelaus at the Federal Court." src="https://images.theconversation.com/files/349862/original/file-20200728-27-16ujmto.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/349862/original/file-20200728-27-16ujmto.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/349862/original/file-20200728-27-16ujmto.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/349862/original/file-20200728-27-16ujmto.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/349862/original/file-20200728-27-16ujmto.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/349862/original/file-20200728-27-16ujmto.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/349862/original/file-20200728-27-16ujmto.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Actor Geoffrey Rush was awarded almost $2.9 million in damages over defamatory articles published by The Daily Telegraph in 2017.</span>
<span class="attribution"><span class="source">AAP/Bianca de Marchi</span></span>
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<p>A <a href="https://www.justice.nsw.gov.au/justicepolicy/Documents/review-model-defamation-provisions/consultation-draft-of-mdaps.pdf">previous draft</a> of the proposed changes had a defence based on <a href="http://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZCA/2018/278.html">New Zealand law</a>. The latest iteration of the defence, the proposed “section 29A”, is a bit different. It is based on <a href="https://www.legislation.gov.uk/ukpga/2013/26/section/4/enacted">UK legislation</a>. It reads:</p>
<blockquote>
<p>29A Defence of publication of matter concerning issue of public interest</p>
<p>(1) It is a defence to the publication of defamatory matter if the defendant proves that:</p>
<p>(a) the matter concerns an issue of public interest, and</p>
<p>(b) the defendant reasonably believed that the publication of the matter was in the public interest.</p>
<p>(2) In determining whether the defence is established, a court must take into account all of the circumstances of the case.</p>
<p>(3) Without limiting subsection (2), the court may take into account the following factors to the extent the court considers them applicable in the circumstances […]</p>
</blockquote>
<p>The difference between “of public interest” and “in the public interest” is significant. Gossip pieces — for example, which celebrity did what with whom — may be “of public interest”, but its reporting is not necessarily “in the public interest”.</p>
<p>Several factors will guide whether a defendant publisher’s conduct satisfies the defence. They include the integrity of sources, and whether the publishers bothered to get the other side of the story. The new law should thus not protect the kind of dodgy journalism that led to <a href="https://www.abc.net.au/news/2017-09-13/rebel-wilson-defamation-damages/8936850?nw=0">Rebel Wilson’s massive defamation win</a> after gossip mags went after her.</p>
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<p>The new defence is not too different from the “<a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=809885">qualified privilege</a>” defences to defamation that already exist. Traditional media rarely win with a qualified privilege defence because their conduct is often not “reasonable”. The new defence gets to a similar place through different words. One difference is that the new defence may succeed even if the defendant defamed someone with “malice”. So the new defence could embolden more aggressive, “gotcha” journalism designed to hurt people.</p>
<h2>What about people who aren’t celebrities?</h2>
<p>There is a bit in there for us too.</p>
<p>Most significantly, there is a new requirement that the plaintiff suffer “serious harm” in order to sue. We already had a defence of “triviality” for smaller cases, but this amendment inverses it: rather than it being something for the defendant to argue in response to a plaintiff, the plaintiff needs to overcome the threshold.</p>
<p>Judges are encouraged to stop defamation cases that do not involve “serious harm” as quickly as possible.</p>
<p>This may weed out a few backyard defamation disputes. But it will not go as far as some suggest. “Harm” might arguably extend to offence and distress; it will be interesting to see how courts interpret the new law.</p>
<p>Much more could be done to modernise defamation law for the sake of the public as a whole. <a href="http://www.austlii.edu.au/au/journals/UNSWLJ/2018/42.html">Creating a way</a> for smaller defamation disputes to be resolved quickly and cheaply would be great. Just because a case does not turn on big money does not mean the interests at stake are not worth protecting. Say, for example, your ex falsely called you a domestic abuser to your friends and family on Facebook: you shouldn’t need to be cashed up to protect your reputation.</p>
<p><a href="https://mumbrella.com.au/a-push-to-make-social-media-companies-liable-in-defamation-is-great-for-newspapers-and-lawyers-but-not-you-607831">There is a second stage of defamation law reform on the way</a>, which will likely look at the liability of social media companies for defamation.</p>
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Read more:
<a href="https://theconversation.com/a-push-to-make-social-media-companies-liable-in-defamation-is-great-for-newspapers-and-lawyers-but-not-you-127513">A push to make social media companies liable in defamation is great for newspapers and lawyers, but not you</a>
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<p>If traditional media and <a href="https://www.smh.com.au/politics/federal/law-should-treat-social-media-companies-as-publishers-attorney-general-20191120-p53cch.html">Attorney-General Christian Porter</a> have their way, the reform to come will level the playing field between traditional media and tech companies like Google by making life harder for the tech giants.</p>
<p>Ironically, the key drivers of the so-called “modernisation” of defamation law are those traditional media companies furiously resisting the demise of their business model.</p>
<p>For better or worse, they have the ears of Australian governments.</p><img src="https://counter.theconversation.com/content/143532/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael Douglas works as a consultant at defamation firm Bennett + Co. He is a member of the ALP.</span></em></p>While the latest changes to defamation laws are a step in the right direction, much more could be done to improve them for the benefit of the public.Michael Douglas, Senior Lecturer in Law, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1322552020-02-26T18:59:05Z2020-02-26T18:59:05ZWe groom dogs in our own image: the cuter they are, the harder we fall<figure><img src="https://images.theconversation.com/files/316790/original/file-20200224-24664-l84u6k.jpg?ixlib=rb-1.1.0&rect=24%2C696%2C2303%2C2130&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Hannah Lim/Unsplash</span></span></figcaption></figure><p>Australians are <a href="https://theconversation.com/australians-love-their-pets-so-why-dont-more-public-places-welcome-them-112062">slightly obsessed</a> with our dogs. But are we obsessed enough to watch a reality doggy makeover show?</p>
<p>The reality makeover concept has a long history, from Top Model to the Biggest Loser to Backyard Blitz. Now on <a href="https://7plus.com.au/pooch-perfect">Pooch Perfect</a>, hosted by Rebel Wilson, groomers will compete to see who does the best makeover for dogs: the first reality makeover competition to feature our best friends.</p>
<p>At the heart of this show will be the cute factor. </p>
<p>This got us thinking: what is it that makes something cute and who gets to decide what cuteness is? And why does cuteness tug at our heartstrings so strongly?</p>
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<h2>Cute as a button</h2>
<p>Certain traits are believed to make something or someone cute. Ethologist <a href="https://en.wikipedia.org/wiki/Konrad_Lorenz">Konrad Lorenz</a> noted people generally find infant-like characteristics cute: big, wide-set eyes; a round face; small nose and mouth; and a large head. He argued traits like these make us feel protective: we are willing to do whatever it takes to keep our cute children safe until they develop enough to look after themselves. </p>
<p>One argument is <a href="https://www.sciencedirect.com/science/article/abs/pii/S0162309599800014">pets piggyback on this tendency</a>, with their cuteness inspiring us to care for them. Certainly, we often treat pets like children and consider them to be <a href="https://animalmedicinesaustralia.org.au/report/pet-ownership-in-australia-2013/">members of the family</a>. </p>
<p>Researchers have tried to understand more about what draws us to our pets, and whether cuteness is an important feature. </p>
<p>We do have confirmation <a href="https://www.tandfonline.com/doi/abs/10.2752/175303709X434194?casa_token=WW35yPkYA2gAAAAA:eRdF1GlwWAqjrSTL-keLAi4fL42mR-8XvyM1ecYXQtu0rlPPu3U9tIGh5Ro5tVAY4u3Y83wlx23PAHg">dogs look like their owners</a>, at least insofar as research participants can successfully match dogs with owners based solely on a photograph. </p>
<p><div data-react-class="InstagramEmbed" data-react-props="{"url":"https://www.instagram.com/p/BnUPvlZhGV5","accessToken":"127105130696839|b4b75090c9688d81dfd245afe6052f20"}"></div></p>
<p>However, they can do the same with <a href="https://econtent.hogrefe.com/doi/abs/10.1027/1614-0001.27.1.38">cars</a>, so perhaps instead of looking like their owner, both cars and dogs exhibit features we associate with a certain type of person, allowing us to guess on that basis. </p>
<h2>The ties that bind</h2>
<p>Whether dogs look like us or not, they obviously reflect something important about us. Does dog cuteness matter even beyond this reflection of ourselves? </p>
<p><a href="https://www.tandfonline.com/doi/abs/10.1080/08927936.2015.1069992?casa_token=qo5KM5NHkjAAAAAA:DIzFaZhtK2sYz31ZKGiJuQ3z9xC7hIOxmphb6k-Wsdw26UXtj7etNtnEM09FGF1ap-XTQ1tK3uy2f1Y">We found</a> owners who think their dog is very cute are more likely to feel a strong bond with their dog. </p>
<p>In the same study, some participants sent us a photo of their dog. We then asked strangers to rate the cuteness of the dogs and to judge the dog’s personality from the image. Dogs that were rated as cuter by strangers were also believed to be friendlier and more trainable. </p>
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Read more:
<a href="https://theconversation.com/8-things-we-do-that-really-confuse-our-dogs-122616">8 things we do that really confuse our dogs</a>
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<p>However, when comparing owner and stranger ratings of cuteness, we found nearly all owners think their dog is cuter than strangers do. Beauty may be in the eye of the beholder, after all!</p>
<p>What does this have to do with dog grooming? Well, <a href="https://www.tandfonline.com/doi/abs/10.2752/089279315X14129350722217?casa_token=20dx3dGDkA4AAAAA:BgdaxZpWH7EP5xHyv8GeCx4y_z_NAXoik3rQd0ALd468Fe_-Aqk_d0XN5hvKI47kXUwHK7lNXE78mgA">a 2015 study</a> asked people to rate which out of two dog photos they liked best. The photos were identical except for almost imperceptible changes that made one dog appear slightly cuter or more human-like. </p>
<p>To increase cuteness, researchers made the dog’s eyes larger, the jowls smaller, or increased the space between the eyes. To make the dog more human-like, they applied colour to the dog’s irises, or gave the dog a visible smile. People typically preferred the dogs with cuter or more human-like traits. </p>
<p>The dog groomers on Pooch Perfect appear to instinctively understand this. The difference between the “before” and “after” shots of the dog makeovers is the eyes look bigger (or are made visible at all!), and they look more human with the addition of accessories such as pretty bows. </p>
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<img alt="" src="https://images.theconversation.com/files/317227/original/file-20200225-24651-122e9zl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/317227/original/file-20200225-24651-122e9zl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/317227/original/file-20200225-24651-122e9zl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/317227/original/file-20200225-24651-122e9zl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/317227/original/file-20200225-24651-122e9zl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/317227/original/file-20200225-24651-122e9zl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/317227/original/file-20200225-24651-122e9zl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">On Pooch Perfect, the groomers make the dogs look ‘more human’ by adding accessories such as bows.</span>
<span class="attribution"><span class="source">Seven</span></span>
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<p>Dogs reflect something about us, and some of us care enough about what our dog looks like to go on a reality TV show to get the dog a makeover. </p>
<p>Do you prefer a perfectly groomed dog? Maybe you want to project an image of elegance. </p>
<p>Do you like scruffy and unkempt? That says something else. </p>
<p>Perhaps you have no interest in what your dog looks like: just like your dog, physical appearance isn’t your top priority and feeling safe probably is. </p>
<p>A cautionary note to end on, then, is we must keep animal welfare top of mind. It’s fine to make over a dog who enjoys it, but let’s not cause dogs stress just for the sake of entertainment. </p>
<p>All dogs are wonderful because they are dogs, and we should love and protect them regardless of how successful their latest makeover is.</p><img src="https://counter.theconversation.com/content/132255/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Our evolutionary need to protect cute things is why we fall for the Pooch Perfect doggy make-overs.Tiffani J. Howell, Research Fellow, School of Psychology and Public Health, La Trobe UniversityPauleen Bennett, Professor and Head of Department, Psychology and Counselling, College of Science, Health and Engineering, La Trobe UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/937392018-04-03T04:14:10Z2018-04-03T04:14:10ZDefamation in the digital age has morphed into litigation between private individuals<p>New South Wales District Court judge Judith Gibson <a href="https://www.smh.com.au/national/nsw/defamation-laws-social-media-rebel-wilson-nsw-20180321-p4z5e4.html">recently identified</a> a worrying social trend she sees in running the court’s defamation list – “ordinary people” suing over social media posts. In turn, NSW Attorney-General Mark Speakman <a href="https://www.smh.com.au/national/nsw/defamation-laws-social-media-rebel-wilson-nsw-20180321-p4z5e4.html">committed to a review</a> of defamation laws, in light of “the developing technological environment”. </p>
<p><a href="https://www.uts.edu.au/node/247996/news/trends-digital-defamation">Our new study</a> also observed the emergence of disputes between individuals over posts on various digital channels.</p>
<p>We looked at plaintiffs, defendants and platforms featured in 189 defamation cases over five years, from 2013 and 2017. We found disputes between individuals over posts on social media, in text messages and emails, and many matters involving comments on websites. </p>
<p>Using 2007 as a comparison to a largely “pre-social” period, we found the percentage of digital cases that year was just over 17% of all defamation cases, compared to just over 53% in 2017. </p>
<p>Interestingly, only 21% of cases over the five-year period involved private individuals as plaintiffs, and only 26% involved media companies as defendants (compared to 31% in 2007).</p>
<h2>Not just the domain of celebrities and politicians</h2>
<p>These findings run counter to perceptions of defamation cases largely consisting of proceedings brought by public figures against traditional media companies. Those matters still do occur – think <a href="https://theconversation.com/hockey-v-fairfax-should-start-the-debate-on-defamation-law-reform-44012">Joe Hockey</a> or <a href="https://theconversation.com/rebel-wilsons-4-5-million-win-a-sobering-reminder-that-defaming-a-celebrity-can-be-costly-83968">Rebel Wilson</a> – and they are sometimes the subject of large defamation awards. </p>
<p>However, it seems a large slab of defamation action in Australia is now disputes between individuals over comments posted on social media, websites, or other digital platforms.</p>
<p><a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/act/ACTSC/2016/344.html?context=1;query=reid%20v%20dukic;mask_path=">One of the cases</a> we encountered involved Facebook posts about the CEO of a Canberra football team, made by someone in the football community. <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QDC/2015/133.html?context=1;query=bertwistle%20v%20conquest;mask_path=">Another case</a> was about text messages sent by a woman to her sister that accused the defendant of having consensual and non-consensual sex with his sisters. </p>
<p>In both cases, the people who published the messages did not appear at trial to defend themselves. Damages of more than A$100,000 were awarded, and both plaintiffs obtained injunctions to stop the defendant repeating the claims.</p>
<p><a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2016/201.html?context=1;query=dods%20v%20mcdonald%20no%202;mask_path=">Another matter</a> involved website comments about a police officer involved in an incident where a 15-year-old boy was shot and killed in suburban Melbourne. The statements about the plaintiff were described by the judge as “shocking in the extreme”. </p>
<p>Although traffic to the website would be nothing like that of a news media site, the judge noted a search of the plaintiff’s name on a standard search engine would produce the defendant’s website prominently. </p>
<p>In this case, the defendant created a website dealing specifically with the topic that involved the plaintiff. It was significant that the defendant had both an opportunity and the means – the website – to issue a retraction or apology, but chose not to. This was despite the publication of a coronial inquiry that exonerated the police officer for personal liability. The plaintiff was awarded $150,000 in damages.</p>
<h2>A review overdue</h2>
<p>Claims made about plaintiffs can be very serious, despite most defendants not having the reach of the Herald Sun or The Sydney Morning Herald. </p>
<p>However, Gibson has questioned the merits of many of these cases – or, at least, the suitability of current defamation law as a way to resolve them. She <a href="https://www.smh.com.au/national/nsw/defamation-laws-social-media-rebel-wilson-nsw-20180321-p4z5e4.html">described our laws</a> as “out of sync” with technology.</p>
<p>The cases we looked at weren’t by any means the only defamation judgments over the period we examined. Indeed, we found more than 600 court decisions relating just to these 189 main cases. </p>
<p>The real scale of defamation action in Australia is unknown. Research efforts are complicated by fractured data sources, and public resources only reveal part of the picture. Confidential correspondence and settlements that try to offset costly court action – whatever the merits of those claims – is largely confined to in-house legal teams and their advisers.</p>
<p>All this helps underscore the importance of Gibson’s comments identifying the trends she sees in court, and the commitment from NSW to review defamation laws. </p>
<p>Previously, this decision to tackle a pressing problem in public policy would have pleased major media companies. Considering the findings of our study, it might also help a growing number of ordinary people who now find themselves caught up in complex legal actions.</p><img src="https://counter.theconversation.com/content/93739/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Derek Wilding is the Co-Director of the Centre for Media Transition at UTS. The centre's study, Trends in Digital Defamation, was partly funded by News Corp Australia. The Centre has also received funding from Facebook Australia for a study on journalism and trust. Derek Wilding receives research grant funding from the Australian Research Council for a Discovery Project on media pluralism, and from the Australian Communications Consumer Action Network for a project on responsive regulation in the communications sector. He is President of the Australian chapter of the International Institute of Communications. </span></em></p>A trend of defamation cases going digital has led to a review of defamation law in New South Wales.Derek Wilding, Co-Director, Centre for Media Transition, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/839682017-09-14T04:05:13Z2017-09-14T04:05:13ZRebel Wilson’s $4.5 million win a sobering reminder that defaming a celebrity can be costly<figure><img src="https://images.theconversation.com/files/185789/original/file-20170913-7582-1vils8w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Rebel Wilson leaves the Victorian Supreme Court after winning her case on June 15.</span> <span class="attribution"><span class="source">AAP/David Crosling</span></span></figcaption></figure><p>Earlier this year, a jury of six found that Rebel Wilson <a href="http://www.abc.net.au/news/2017-06-15/rebel-wilson-wins-defamation-case-against-bauer-media/8609670">had been defamed</a> by a series of articles published in print and online by Bauer Media magazines. The jury verdict was overwhelmingly in Wilson’s favour. </p>
<p>The task of assessing Wilson’s damages fell to the trial judge, Justice John Dixon. That judgment was eagerly anticipated. Yesterday, justice Dixon <a href="http://www.smh.com.au/entertainment/rebel-wilson-awarded-456-million-after-defamation-win-20170912-gyg9ao.html">handed down</a> his decision, awarding Wilson A$4,567,472 damages – the largest defamation damages awarded by a court in Australian history.</p>
<p>Although record-breaking, the amount was not entirely unexpected. In her submissions, Wilson had sought a multi-million-dollar payout.</p>
<p>The award of damages is large, but it consists of a number of components. The largest component is approximately $3.9 million for economic loss. Wilson also received $650,000 damages for non-economic loss. The award of damages was also for eight different publications, not just one article.</p>
<p>Assessing damages for defamation is a difficult task. Defamation law protects reputations. Reputation is essentially what other people think of you – it is your public self. </p>
<p>Reputation is personal and subjective – no two reputations are alike. So the size of awards of damages in other defamation cases may be of limited value to a judge determining the damage to that plaintiff’s reputation and the personal distress and hurt suffered by that plaintiff.</p>
<p>In most defamation cases, plaintiffs only seek damages for non-economic loss. Such damages consist of damages for injury to reputation and injury to feelings. </p>
<p>Damage to reputation and the hurt feelings that invariably follow from being publicly defamed are inextricably linked. They are also intangible, so a precise calculation is impossible. Defamation law does its best to put the plaintiff back in the position she would have been in, had she not been defamed, through the only real means available: an award of damages.</p>
<p>Courts have long held that an award of damages for non-economic loss in a defamation case serves three interrelated purposes: vindication of the plaintiff’s reputation to the public; consolation for the hurt and distress caused; and reparation for the harm done to reputation.</p>
<p>Although it is difficult to put a monetary figure on this, a judge cannot simply pick a sum of money off the top of his or her head. The sum awarded must bear a rational relationship to the harm suffered.</p>
<p>Courts are also attuned to the “grapevine effect”: the propensity of salacious information to spread by word of mouth. This was important in this case. Wilson has a global reputation. The defamatory imputations conveyed by the articles spread “on the grapevine” across the globe, where they were picked up by the American media. </p>
<p>The ubiquity of the internet and the accessibility of communications technology means that the grapevine effect has an increasingly important role to play in assessing the real impact of defamatory publications.</p>
<p>Damages for non-economic loss in Australia have been capped since the introduction of the <a href="http://www.justice.nsw.gov.au/justicepolicy/Documents/defamation_act_submission_-_associate_professor_rolph_attached_article.pdf">national, uniform defamation laws</a> in 2005. The current cap is $389,500. </p>
<p>The damages for non-economic loss awarded here went way beyond that figure. There were several reasons for this. First, there were eight articles, not one. </p>
<p>More importantly, justice Dixon found that, because of the way the publisher behaved, aggravated damages were warranted, which meant that the statutory cap could be set aside when assessing the damages.</p>
<p>In relation to the finding of aggravated damages, justice Dixon found that Bauer Media used an unreliable source with a seeming “axe to grind”. The journalists involved failed to investigate allegations made by the sources; the articles were published knowing that they were false; and the allegations were repeated with that same knowledge. Justice Dixon was satisfied that Bauer Media acted in an orchestrated fashion over a period of time for its own commercial reasons.</p>
<p>Wilson’s claim is significant because she claimed damages for economic loss. Such damages have always been available in defamation but have not often been sought. This was particularly the case before the capping of damages for non-economic loss under the national, uniform defamation laws. </p>
<p>Before that occurred, damages for non-economic loss were “at large” and damage to reputation was presumed – the plaintiff did not have to prove he or she suffered any actual harm. </p>
<p>By contrast, damages for economic loss have always required the plaintiff to prove the actual pecuniary losses he or she suffered. There was no incentive for plaintiffs to claim economic losses in defamation.</p>
<p>Now that damages for non-economic loss are capped, there is a greater incentive for plaintiffs to seek damages for economic loss. The judgement in Wilson v Bauer Media shows how it is more difficult for plaintiffs to prove economic losses were a consequence of defamatory publications. </p>
<p>The plaintiff needs to prove that the economic losses were caused by the defamatory publications – when there may have been multiple causes – and that the losses were not too remote. </p>
<p>What is significant in Wilson’s case is that the economic losses for which damages were awarded were not particular film contracts that she claimed to have lost, but the overall loss of opportunity to exploit the success of <a href="http://www.imdb.com/title/tt2848292/">Pitch Perfect 2</a>, which was found to have flowed from the publication of the defamatory articles.</p>
<p>High-profile people attract higher awards of damages in defamation because their reputations and the damage done to them are more widespread than private individuals. </p>
<p>Wilson v Bauer Media is a reminder that defaming a celebrity with an international profile can lead to a substantial payout for the economic harm done. It should also be a rejection of the view, as justice Dixon put it, that “inflicting substantial damage on a celebrity’s reputation for entertainment purposes is legitimate fun” – a salutary lesson for mainstream media and private individuals online alike.</p><img src="https://counter.theconversation.com/content/83968/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Rolph has previously received funding from the Australian Research Council. </span></em></p><p class="fine-print"><em><span>Michael Douglas is affiliated with the ALP.</span></em></p>Rebel Wilson’s large damages award for defamation is a salutary lesson that defaming a celebrity with an international profile can lead to a substantial payout for the economic harm done.David Rolph, Professor of Law, University of SydneyMichael Douglas, Lecturer in Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.