Over the many years I have been in legal practice I have experienced a steady stream of clients filing into my office airing a common complaint: I have been defamed on the Internet and I don’t know what to do about it. Often they are just as concerned about preventing further publications as seeking redress for the damage already done.
Decisions of the High Court of Australia have made it clear that the location of an internet server is irrelevant so long as the publication of the defamatory material is in Australia. Practically speaking, however, trying to enforce a court order against an Internet host internationally can be near to impossible.
Thus the only legal target is often the defamer, if indeed they are known. Often they are not, and the victim has no redress and no respite. Defaming an individual in this way is cowardly and damaging.
Two weeks ago, in the Western Australian Supreme Court, our firm received a judgement in a landmark matter that pitted a serial defamer against a number of Perth business people. Terry McLernon had relentlessly and falsely accused our clients, Anton Billis, Oliver Douglas and Paul Matich, of dodgy business dealings and improper conduct. Unlike in many instances of this type, he made little practical attempt to conceal his identity, despite engaging in a campaign of deplorable conduct by repeating, over and over, a litany of vicious , unproven and untrue allegations, which amounted to defamation – pure and simple.
Many a plaintiff so defamed would have nowhere to turn. The thought of incurring legal fees to secure a judgement for damages which may ultimately prove to be unrecoverable would deter many a victim, leaving them unprotected and vulnerable. However, Messrs Billis, Douglas and Matich were having none of it. Sick of McLernon’s repeated publication of false and defamatory material they launched a civil action which proved both epic and bold, and finally, on October 7, 2016, their stance was vindicated.
“There is a lingering misapprehension that anything at all can be posted concerning another person over the Internet, no matter how defamatory or scandalous, and that the posted material will enjoy a complete immunity.”
Not only did they receive judgements for near-record sums in the circumstances, including what in law we call ‘aggravated damages’, they were granted indemnity costs which are ordered in the discretion of a judge when another party ought not to have either brought or defended a civil legal action. Further, and perhaps most importantly, they also won permanent injunctions preventing publication of any further defamatory material in like vein by the defendant. Should the defendant now breach the order of the court it would amount, in all likelihood, to contempt for which one may be jailed.
In his judgement, Justice Kenneth Martin had a bit to say to the community about the prevalence of Internet “trolling” and its potential consequences for those unwise enough or stupid enough to engage in it. Describing McLernon as “some sort of self-appointed Internet crusader”, he warned those who may wish to engage in such conduct by saying : “There is a lingering misapprehension that anything at all can be posted concerning another person over the Internet, no matter how defamatory or scandalous, and that the posted material will enjoy a complete immunity.”
Needless to say His Honour’s judgement put paid to that “misapprehension”. It is a very import principle for those using the Internet, which is almost all of us, that an Internet publication for the purposes of defamation law is a publication like any other. It is also possible to prove publication, even circumstantially, as happened in this instance.
In this case, the judge accepted that the plaintiffs had been repeatedly embarrassed and suffered reputational harm as a result of McLernon’s publications. When mud is thrown it tends to stick. Even if a reasonable reader reading McLernon’s publications may have had some uncertainty about the accuracy of everything he said, they would be left with an overall sense that the plaintiffs had engaged in dodgy, even criminal, business dealings, which was and is completely and utterly false. At worst they might accept and believe every word he published. The judge remarked on how “pejorative and damaging” such allegations “would be to a person’s reputation”.
Perhaps this is one of those rare cases where the defendant was blatantly caught in the act, and used every tactic at trial to deflect and obfuscate. His evidence led the judge to find that his “responses… were, on my assessment, false, unbelievable and unreliable. At times…they bordered on bizarre”. The judge said McLernon “attempted deceit” and concluded his findings by saying “he was a devious, untruthful and unreliable witness”.
All that and the publications themselves led to the decision to award both aggravated damages and indemnity costs, but throughout the judge was aware that whatever he awarded by way of damages may not be paid by the defendant. As a consequence, he ordered what was probably the most practical thing in the circumstances – permanent injunctions to prevent similar publications in the future.
The total damages in the end tallied up to $700,000, plus interest. Together with costs the sum owed by McLernon may well be north of $1 million. As to the injunctions, they were awarded by the judge due to his suspicion that he thought there existed “a strong risk as to the likelihood in the future of repeat publications”.
In summary, this is a salutary lesson for those who think they can spray venom with impunity on the Internet. As with Twitter, an author ought to think very carefully before they fire. For the average person such an award of damages would likely lead to financial ruin. Ignore the injunctive orders and you may be headed for jail. For those defamed, take heart: there is sometimes justice in this world, even though it can a hard road to hoe.
We can thank Messrs Billis, Douglas and Matich for providing a timely reminder to the “trolls” that there are consequences for unlawful civil conduct – serious consequences.
Morry Bailes is the managing partner at Tindall Gask Bentley Lawyers, treasurer of the Law Council of Australia and is a past president of the Law Society of SA. The opinions expressed in this column are his own.
His column appears every second Thursday.
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