Cripps & Anor v Vakras & Anor [2014] VSC 110

2 Mr Vakras' second article is the same as the first article, save that it contains additional text under a new heading 'Addendum 2 April 2011'. The contents of the addendum are not relevant to this ruling. Accordingly, I will refer solely to the first article, which for convenience I will describe as the 'First Article'.

3 The First Article can be accessed via the home page of Mr Vakras' website or directly on the webpage http://www.vakras.com/guildford\_lane\_gallery.html.

4 The subject matter of the First Article is the defendants' unhappy experience in exhibiting their artwork at the Guildford Lane Gallery ('Gallery') in mid-2009. At that time, the Gallery was operated by the second plaintiff, Redleg Museum Services Pty Ltd ('Redleg'). The first plaintiff, Mr Robert Cripps, is the sole director and company secretary of Redleg.

5 The First Article, when printed, extends over seven pages and comprises text, photographs, images and 'screen shots' of internet items which are presented in framed 'boxes'. It also contains seven hyperlinks embedded in the text.[1]

6 The First Article is very critical of Mr Cripps. It includes the following statement:

Cripps is a self-confessed racist [the new-left Nazis]. He is a manifestation of the new-left who have adopted the sentiments Hitler expressed in his Mein Kampf, but who believe that, though theirs and Hitler's sentiments are the same, their racism is a 'justifiable' one [new-left Nazis]

7 The above statement contains two hyperlinks, namely the text in brackets. By clicking on either hyperlink, the reader is taken to a separate article headed 'Hitler's disciples: the new racism of the political Left' ('Hyperlinked Article') that was written by Mr Vakras and posted on his website. As both hyperlinks are links to the Hyperlinked Article I will treat them as being a single hyperlink. The reference to seven hyperlinks at [5] above should be read in that light.

8 The Hyperlinked Article can be accessed via the home page of Mr Vakras' website or directly on the webpage http://www.vakras.com/new-left-and-nazism/.

9 The Hyperlinked Article, when printed, extends to 11 pages and comprises text, photographs, images and 'screen shots' of internet items. It appears that the Hyperlinked Article was written and uploaded prior to, and independently of, the First Article. The Hyperlinked Article discusses what Mr Vakras considers to be similarities in the views of Hitler and what Mr Vakras calls 'the new Left'. The Hyperlinked Article is particularly critical of an Australian cartoonist whom it accuses of being a racist. The Hyperlinked Article has no connection to the plaintiffs other than the first paragraph. That paragraph (which is set out in the Appendix to this ruling) appears to have been added to the Hyperlinked Article after it was originally posted on Mr Vakras' website.

10 In their current statement of claim, the plaintiffs complain about the First Article which is set out in annexure A of that pleading. No complaint is made about the Hyperlinked Article. In para 5 of his defence, Mr Vakras admits that he published the First Article. However, he goes on to plead that 'the First Vakras article consisted of the words set out in Annexure A ... together with the hyperlinks referred to in the words, all of which the defendants will rely upon at trial.'

11 At the commencement of the trial, Mr Vakras informed the Court that he intends to rely only on the parts of the Hyperlinked Article that are set out in the Appendix to this ruling ('Extracts from the Hyperlinked Article') and not to rely on any other hyperlinked item. He said that those extracts would be relied upon by him in relation to the meaning of the matter complained of and in support of the defences of fair comment and honest opinion.

12 The plaintiffs have applied for an order striking out the words 'together with the hyperlinks referred to in the words, all of which the defendants will rely upon at trial' in para 5 of Mr Vakras' defence on the basis that the Hyperlinked Article is a separate publication which does not form part of the matter complained of in this proceeding.[2]

13 For the reasons set out below, I have decided to grant the plaintiffs' application.

14 The question of whether separate items published by a defendant about a plaintiff should be regarded as individual or composite must be assessed on the facts and circumstances of each case.[3] Relevant considerations include: whether the terms of the first item direct the reader to the other item; the mode of publication for each item; whether the items were published simultaneously or after an interval; the length of any such interval; whether the items deal with the same subject matter; the nature and potential overlap of the class of persons who saw, heard or read the items; whether the same imputations arise from the two items; and whether the same defences are relevant to the two items.[4]

15 Where the matter complained of is published on the internet, the question of whether a file that appears on a website is self-contained or is part of a wider publication that includes other files depends on the circumstances of each case. Apart from the matters set out at [14] above, relevant considerations include the form, purpose, context and subject matter of each file and the nature of any links b[5]tween them.5

16 If a plaintiff elects to proceed as though a number of individual parts of the matter complained of together amount to a composite publication, the pleading will be struck out only if that approach is not reasonably open or creates unfairness of such a degree as to constitute an abuse of process. Similarly, where the plaintiff elects to proceed as though each were a separate publication, it is only where that view is not reasonably open (or where unfairness amounting to abuse of process would result) that the pleading will be struck out. Within those boundaries, a plaintiff is entitled to mark out the playing field.[6]

17 In The Buddhist Society of Western Australia Inc v Bristile Ltd,[7] Bristile Ltd sued The Buddhist Society of Western Australia Inc in relation to two letters and an information document that appeared as separate files on the Society's website. The statement of claim treated the three items as separate publications. The Lange defence[8] was potentially available in respect of one of the letters and the information document but not in respect of the second letter. In its defence, the Society described the three items as an 'entire package of information' and pleaded the Lange defence in respect of all three items collectively. The plaintiff applied to strike out the relevant paragraph of the defence on the basis that the three items were separate publications and each defence had to be pleaded separately in relation to them.

18 Anderson and Owen JJ upheld the primary judge's decision to strike out the impugned paragraph of the defence. Their Honours rejected the Society's submission that, because each file on an internet site on a particular subject matter is linked to each other file, all files should be regarded as one item for the purposes of defamation law. Their Honours said:

In our opinion, Steytler J was correct to regard the letter in question as a separate libel. The [second] letter ... is not part of the other two items. It is drawn up to be read as a single document, not as part of one larger document. It has its own substantive identity. Its peculiar purpose is not to inform the public, or any section of the public, about political or governmental matters. It is drafted as a discrete written communication unconnected in form or by reference to its content to any other document. In its electronic existence as part of the content of the web site, it is a separate 'file' and is intended to be, and would be, called up and viewed as a separate article. It has an individualness of form and purpose. We are of the opinion that in the context of the law of defamation, it must stand or fall on its own.[9]

Questions of context and of cross-referencing have been held to be relevant to the meaning of a publication for purposes of the law of defamation. For example, where a newspaper article refers to another report in the same issue, a party to the proceedings may have that other report read as part of the context in which the meaning of the words complained of is to be determined ... while in the case of an alleged libel contained in a letter, the whole of the correspondence may be the relevant context ...

The question of how one determines the 'context' of a document which appears on the World Wide Web is, I think an open one, the answer to which may depend upon evidence which is not presently before the court. In my view, the [second] letter ... may, depending upon the evidence adduced at trial, be able to be seen as part of a package of information or suggested activity which has predominantly a political purpose and which forms part of a series of linked communications about political matters. This is particularly so, since it is 'boxed' together with other documents which have a more strongly political orientation ... and because the links ... refer the reader directly to other information which sets out in more detail the history of the matter and its political context. The nature of the document is also of some relevance. It is in the form of a letter which the reader is invited to download, modify and send to the Managing Director of the plaintiff. No doubt some readers who are merely idly curious may not consider any further links, but the presentation of the document in that way appears to beg the question of why it is desirable to communicate with the plaintiff in that way, and is therefore likely perhaps to stimulate the reader to turn to the [information document] or to some other apparently related document.

On the other hand, the [second] letter is able to be read as a single document, and access may be gained to it without the reader necessarily going to any of the other links. It could be called up and viewed as a separate article, even without going to the Home Page, although it is not clear whether this is likely. It does not contain any direct references in the body of the letter, to its political context. There are therefore reasons to regard the document as a single distinctive publication.[10]

20 In Leighton v Garnham,[11] Le Miere J dealt with an application for a 'strike in' order requiring the plaintiff to include, as part of the internet item complained of ('second article') a separate item ('Open Letter') that was linked to the second article by a hyperlink. The defendants in that case challenged the plaintiff's pleading which relied solely on the second article and did not treat it and the Open Letter as a single composite publication. His Honour refused the defendants' application for the following reasons:

In this case there are features of the second article and the Open Letter which make it arguable that they are a single composite publication. The second article refers to the Open Letter and takes the form of a response to the letter. Furthermore, a contracted, though unreadable, image of the letter appears as part of the article and there is a hyperlink from the article to the letter. On the other hand, it is arguable that the second article and the Open Letter are separate publications. They are separate files or pages on the website. Each could be downloaded and read without downloading or reading the other. The second article and the Open Letter are written by different authors. The second article purports to be a self-contained article which can be comprehended without reference to the Open Letter. The form of the article is to set out the author's interpretation of statements in the letter and the author's response to them. It is the author's response, or the author's assertion that the letter withholds or conceals information or the contrast between the author's interpretation of what the letter says and the author's response that gives rise to the allegedly defamatory imputation. If the article does not constitute a true and fair view of the letter that does not affect the meaning of the article.

A body of reasonably minded readers could regard the second article as a separate, self-contained publication containing the whole of what the plaintiff is complaining about. The view that the second article and the Open Letter constitute one publication containing the whole context in which the meaning or sense of the words used in the second article is to be understood by a body of ordinary reasonable readers is not the only view reasonably open.

It is therefore open to the plaintiff to plead the second article as a single publication containing the whole of the context in which to determine whether the pleaded imputations were conveyed by that matter. The fact that the plaintiff has not included the Open Letter does not prevent its tender by the defendants at trial in support of any defences to which it may be relevant.[12]

21 The plaintiffs submitted that the subject matter of this proceeding is the matters complained of in their statement of claim, which do not include the Hyperlinked Article. That article was said to be separate and distinct from the First Article and the two articles cannot be regarded as a single composite publication.

22 Mr Vakras submitted that the First Article and the Hyperlinked Article are a single composite publication because of their nature, subject matter and context, and because they are linked together. He relied on the fact that both articles were written by him and appear on the same website. He submitted that the Hyperlinked Article is not just another reference that a reader can follow up but that it 'puts meat on the bones' of what the phrase 'manifestation of the new-left' in the First Article means.

23 In my opinion, the First Article and the Hyperlinked Article - or any specific parts of the Hyperlinked Article - cannot reasonably be regarded as a single composite publication for the purposes of the law of defamation.

24 The two articles were written and posted on the internet at different times and deal with different subject matters. While Mr Cripps is the principal target and focus of the First Article, he is mentioned only in passing in the Hyperlinked Article. The First Article accuses Mr Cripps of being a racist. That accusation is not made against him in the Hyperlinked Article but it is made against a cartoonist.

25 The two articles are self-contained in the sense that they can be read and understood without reference to each other. The First Article provides text which explains what are said to be the racist views of Hitler in Mein Kampf. It is true that a reading of the Extracts from the Hyperlinked Article may further assist a reader to understand the references to 'the new-left' in the First Article but the same would be true of a footnote in any publication that contains a reference to another publication on the same subject matter that the reader might find interesting or useful. Of itself, that does not mean that the publications are a single composite publication.

26 The fact that the First Article contains seven hyperlinks indicates that the First Article is intended to be read as a self-contained article without an expectation that a reader will necessarily read all the linked material. The hyperlinks are no more than a choice that is offered to the reader to quickly and conveniently pursue further reading of separate publications that may relate in some way to the text of the First Article. In these circumstances, it is inappropriate for Mr Vakras to select a small part of only one of the hyperlinked items and to purport to include it in the matter complained of. In my opinion, the fact that Mr Vakras proposes to rely on only a small portion of the Hyperlinked Article supports my view that the two articles are separate and distinct publications.

27 Mr Vakras' contention that the two articles are a single composite publication may have been more credible if they were mutually interdependent for their meaning and effect and cross-referenced to each other. However, while the First Article contains a hyperlink to the Hyperlinked Article, there is no hyperlink in the Hyperlinked Article to the First Article. The first paragraph of the Hyperlinked Article refers to Mr Cripps but does not refer to the First Article.

28 The observations of Anderson and Owen JJ in Bristile are apposite in the present case. As with the three items in Bristile, the two articles in the present case: are not part of each other; are drawn up to be read as individual documents rather than as part of a single larger document; have their own substantive identity; are drafted as discrete written communications; are separate electronic files which are intended to be, and would be, called up and viewed as separate articles; and have an individualness of form and purpose. The fact that there is a hyperlink in the First Article which creates a link to the Hyperlinked Article is insufficient to convert the separate articles into a single composite article.

29 For the above reasons, I will order that the words 'together with the hyperlinks referred to in the words, all of which the defendants will rely upon at trial' be struck out from para 5 of Mr Vakras' defence.

30 The making of that order does not necessarily mean that the contents of the Hyperlinked Article are not relevant to any of the issues in this proceeding. Reference has been made to the contents of the Hyperlinked Article in the evidence and the parties will be at liberty to make submissions in their final addresses about how, if at all, I may take into account those contents in determining the issues in this proceeding.

The Extracts from the Hyperlinked Article are as follows:

Hitler's disciples: the new racism of the political Left:

Late 20th and early 21st century Euro-Racism

In an exhibition of my works held during June-July 2009 I was criticised for the sentiments which underlie my works by the owner of the gallery in which my works were being exhibited. According to this gallery owner/director (Robert Cripps, refer exhibition), criticism of Judaism or Christianity, or Zoroastrianism, is acceptable, but any criticism of Islam (by citing the Koran in the same way that I cite Biblical passages to criticise Judaism/Christianity) is, as he claimed, 'racist', because if applied to 'Palestine', it would mean that the Muslims, and not Jews are responsible for what ails that region.

Nearly 65 years after the end of WW2, and the views of Hitler are rehabilitated.

ADOLF HITLER AND THE 21ST CENTURY LEFT

Hitler's racist disciples: the political Left

A large number of the 'conscientious' Left are (or claim to be) oblivious to what Hitler actually wrote, but denounce him for what they claim is his racism. Nevertheless, this 'conscientious' Left have adopted what Hitler wrote in the Mein Kampf, and express these very same sentiments as a demonstration of the sincerity of their good conscience!

Neo-Hitlerianism is a phenomenon of the European political Left. It exists in Australia. It is claimed that this phenomenon is part of a 'secular' criticism of Israel. However, the exponents of the new Left are RACIST Christians feigning a secular impartiality. The most prominent of Australia's Leftist Christian racists is the cartoonist Leunig.

Hitler's disciples of the Left claim a profound concern for the plight of 'Palestinians'. This is expressed as a racial hatred of Jews, with arguments which are derived directly from Mein Kampf. ...

... the Zionists try to make the rest of the world believe that the national consciousness of the Jew finds its satisfaction in the creation of a Palestinian state ... [not] for the purpose of living there; all they want is a central organisation for their international world swindle endowed with its own sovereign rights and removed from the intervention of other states ...

p. 294, A Reckoning, Main Kampf, (Manheim translation).

Those of the political Left such as Leunig claim that the insidious aims Hitler claimed for the Jews have been fulfilled via the creation of the state of Israel! They, like Hitler, believe that their sentiments are conscientious, and though identical to those of Hitler, they believe somehow that though Hitler was a racist that they are not.

The claim that Hitler's racism was a rejection of Christian values is one often cited by the pseudo-secular Christian Left. This claim is at odds with what Hitler wrote:

[The Jew's] life is only for this world, and his spirit is inwardly as alien to true Christianity as his nature two thousand years previous was to the great founder of the new doctrine. Of course, the latter made no secret of his attitude toward the Jewish people, and when necessary he even took to the whip to drive from the temple of the Lord this adversary of all humanity ... In return, Christ was nailed to the cross, while our present-day Christians debase themselves to begging for Jewish votes at elections ...

p. 278, A Reckoning, Mein Kampf, (Manheim translation)

...

Thus a Christian Hitler writes:

... I believe that I am acting in accordance with the will of the Almighty Creator: by defending myself against the Jew, I am fighting for the work of the Lord.

[1] Where the same hyperlink appears more than once, I have treated it as a single hyperlink.

[2] This application was originally made at the interlocutory stage of the proceeding. Beach J ruled that the application should be made to the trial judge.

[3] Phelps v Nationwide News Pty Ltd [2001] NSWSC 130 (9 March 2001) [24] ('Phelps').

[4] Phelps [2001] NSWSC 130 (9 March 2001) [23]-[25].

[5] The Buddhist Society of Western Australia Inc v Bristile Ltd [2000] WASCA 210 (9 August 2000) [10] ('Bristile').

[6] Phelps [2001] NSWSC 130 (9 March 2001) [22].

[7] [2000] WASCA 210 (9 August 2000).

[8] See Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520.

[9] Bristile [2000] WASCA 210 (9 August 2000) [10].

[10] Bristile [2000] WASCA 210 (9 August 2000) [44], [47]-[48] (citations omitted).

[11] [2012] WASC 314 (4 September 2012) ('Leighton').

[12] Leighton [2012] WASC 314 (4 September 2012) [51]-[53].