16 Sep Review of Rebel Wilson $4.6 million defamation case against Woman’s Day (Bauer Media) by Shane Reynolds
Gossip magazines and Australian newspapers make a killing spinning the truth and hanging salacious headlines on fictitious sources. Now they have been put on notice, after Rebel Wilson won a record-breaking defamation case against the publisher of Woman’s Day.
This week, Rebel Wilson obtained the highest ever damages award in a defamation case in Australia, about $4.56 million.
This included $650,000 for general damages (or non-economic loss) and the balance for special damages (or economic loss). Damages for non-economic loss are capped at a maximum of $250,000 by legislation (increased with indexation, so that the current cap is just over $389,000). The maximum can be increased by the court, but only if it is satisfied that the publication was in circumstances of publication warrant an award of aggravated damages. In general terms, this is determined by reference to the effect of the conduct of the publisher defendant in aggravating the injury suffered by the claimant. In this case, the Court considered that Bauer’s conduct warranted an award of aggravated damages and held the cap is not applicable. This was because, amongst other things, Bauer was considered to have published the material knowing it to be false, in circumstances where it was orchestrated to coincide with the release of a major film starring Rebel Wilson to gain maximum exposure. My colleague Richard Mitry discussed this significant decision on Channel 9 earlier this week.
This is a link to the segment:
This is a link to the judgement:
Uniform defamation law now applies in Australia. Anyone who has had damaging material published about them can take legal action against publishers, broadcasters and distributors to defend their reputation. Several defences or justifications, including truth, are available. Damages and injunctions are the remedies.
Visit my website www.theaustralian.net.au (Litigation Resources for consumers by Shane Reynolds) for more information or call 1300 884 361. I have extensive experience in mediation and litigating with Australian publishers and dealing with social media platforms in having defamatory material removed from the internet.
Summary of Judgment:
“The jury’s verdict on 15 June 2017 established that Bauer Media’s publications had branded Ms Wilson a serial liar, who had fabricated almost every aspect of her life. Nothing she said about herself could be taken as truth.
The jury rejected the defences of substantial truth, triviality, and statutory qualified privilege.
I concluded that the defences of common law qualified privilege must also fail.
The damage suffered by Ms Wilson warrants a substantial damages award to vindicate her and nail the lie.
At trial, and in the full media glare, Bauer media attempted to characterise its articles as true, or as trivial, or as not likely to be taken seriously.
Substantial vindication can only be achieved by an award of damages that underscores that Ms. Wilson’s reputation as an actress of integrity was wrongly damaged in a manner that affected her marketability in a huge, worldwide marketplace, being the market for Hollywood films of the type in which Ms. Wilson appeared.
The extent of the publication of the defamatory imputations against Ms. Wilson was unprecedented in defamation litigation in this country.
Because of instantaneous distribution across the world wide web, precisely at a time when the media worldwide, but particularly in the USA, was focused on her success in the just-released Pitch Perfect 2.
The publication had a long-lasting and profound impact on Ms. Wilson, both physically and psychologically, and caused her significant distress. Substantial damages are necessary to compensate her for the injury to her feelings.
Ms Wilson is entitled to aggravated damages due to Bauer Media’s conduct into circumstances of the publication. For that reason, the cap for general damages in defamation proceedings imposed by the Defamation Act, which is currently $389,500, does not apply.
Three particular features of Bauer Media’s conduct warranted that finding of aggravation.
First, Bauer Media failed to properly investigate the allegations made against Ms. Wilson, and published them in Women’s Day, knowing them to be false.
The allegations were based on information from a source who required payment and anonymity and whom the editor considered had an axe to grind.
Secondly, they repeated the offending allegations when they knew or foresaw that their defamatory slurs would be repeated in the entertainment and celebrity media.
Thirdly, their conduct was orchestrated. It was a campaign that was designed to cast a slur on Ms Wilson that would attract interest. Bauer Media published to advance its own corporate interests to improve its circulation or increase views, hits, in the expectation of higher profits.
It kept the story alive for days.
Bauer Media appreciated the risk of reputational damage to the plaintiff, and did not care whether Ms. Wilson suffered it as it pursued it’s own corporate objective.
I am satisfied that but for the repetition of the defamatory stings over the grapevine into US entertainment and celebrity media, Ms. Wilson would have been cast in lead roles or co-lead roles in feature films during the 18 month period following the media firestorm that the publications caused, and that some pf those film projects would have been completed.
This did not happen, and I have concluded that the defamatory publication inflicted substantial financial loss on Ms. Wilson. This loss was valued by substantially discounting the gross value of the opportunity that she had in mid-2015 of offers of new screen roles following the success of Pitch Perfect 2.
By reference to my assessment of the probabilities that it would actually have come about in this way, I have assessed the loss actually suffered by Ms Wilson by reason of the defendants’ tortious conduct.
The judgement of the court is that the defendants Bauer Media Pty Ltd … pay the plaintiff Rebel Wilson damages totaling $4,567,472 before interest and costs are added.
The damages award is comprised of $650,000 in general damages, including aggravated damages, and $3,917,472 in special damages for Ms Wilson’s opportunity for new screen roles, lost by reason of the defendant’s publications.
I’ve published my reasons and a brief summary to be distributed with them. I will invite counsel to agree the quantum of interest to be included in the judgement on the basis referred to in my reasons and I will hear counsel on the question of costs.”