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https://www.minterellison.com/articles/four-lessons-for-media-companies-after-major-defamation-payout

Four lessons for media companies after major defamation payout

3 minute read  30.07.2020 Peter Bartlett, Patrick Considine, Dean Levitan

Following the largest defamation payout to a single person in Australian history, we outline some key lessons for media companies and journalists.

Actor Geoffrey Rush's successful 2019 defamation suit against The Daily Telegraph was recently upheld as the largest defamation payout to a single person in Australian history, following an appeal. This ground breaking case offers important lessons and implications for journalists and media companies going forward. 

The successful defamation case

On 30 November and 1 December 2017, The Daily Telegraph published a series of articles that alleged Geoffrey Rush had sexually harassed an actress during Sydney Theatre Company's 2016 production of King Lear. The actress was later revealed to be Erin Jean Norvill.

At trial, Justice Wigney found the publications presented seven defamatory accusations about Rush. The Daily Telegraph raised only one defence: truth. Wigney J rejected the defence because Norvill's credibility was in doubt and the newspaper had failed to raise sufficient evidence to support its claims.

Important to the case was that the articles were published in a sensationalistic manner, and The Daily Telegraph had acted improperly during proceedings. Rush was awarded $2,872,753.10 in damages.

A later appeal to the Full Federal Court was also rejected.

Key takeaways for journalists

It is worth noting that both The New York Times and ABC wrote detailed articles about Rush's alleged mistreatment of Yael Stone. Rush did not sue either outlet for defamation. Instead, he issued a quasi-apology to Stone.

A comparison of the articles reveals important reminders for journalists who want to avoid defamation proceedings in the age of the #MeToo movement, some of which are trite, but often overlooked.

1. Seek comment from the complainant and publish their testimony

Perhaps the biggest shortfall of The Daily Telegraph's article was that its reporters never spoke to Norvill. Its only source was an ambiguous, second-hand report of Norvill's complaint. Because of its very ambiguous source, The Daily Telegraph's story contained numerous factual errors.

In contrast, both The New York Times and ABC featured an extensive interview with Stone, who was quoted at length. As a result, the allegations were very specific.

The less precise the content of an article is, the easier it will be for a plaintiff to establish that multiple defamatory imputations arise from it.

2. Gather appropriate corroborating material

The Daily Telegraph also failed to gather corroborating evidence. At trial, Wigney J held it was likely the newspaper knew that even the Sydney Theatre Company had not been able to confirm whether the inappropriate behaviour had occurred. This lack of supporting evidence proved fatal to The Daily Telegraph's truth defence.

3. Ensure accuracy, acknowledge complexities and don't sensationalise

The Court found that The Daily Telegraph's failures were exacerbated by the way in which it sought to sensationalise the story. It was found that the paper deliberately used scandalous headlines, lied about Rush's knowledge of the complaint, mispresented tweets to make it appear as if they confirmed the allegations and placed the articles next to stories about accused sexual predator Don Burke.

4. Give the alleged perpetrator a genuine opportunity to respond

Though The Daily Telegraph included excerpts of a statement from Rush's lawyers, Justice Wigney decided (and the Appeal court upheld) that it overwhelmed his denials with other information. The Court found that the articles also implied Rush was lying. The effect of this was to leave the reader with the impression that Rush had definitely engaged in the alleged conduct.

Implications for media companies

The ramifications of this case for media companies are significant. In Rush's case, the presence of aggravating conduct resulted in an award of $850,000 for non-economic loss. This is more than double the statutory cap.

Contact us for a more detailed analysis of this case, or to help you develop a suitable risk mitigation strategy for defamation cases.

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https://www.minterellison.com/articles/four-lessons-for-media-companies-after-major-defamation-payout

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