Submissions
16 Counsel for the applicant indicated that the Take Down Order was not pressed in relation to the first respondent as the Main Post has been removed from Instagram, however it was submitted that a Pre-Publication Order should be made to prevent the first respondent from publishing any further defamatory matter relating to the applicant. Both the Take Down Order and the Pre-Publication Order, with respect to the January Posts, were pressed against the third respondent. It should be noted that counsel for the applicant also offered the usual undertaking as to damages if the interlocutory application were to succeed.
17 The applicant's counsel submitted that the chronology of events contained in the January Posts is long and inaccurate, and contains defamatory imputations. The applicant's counsel further submitted that evidence of the defamatory and damaging imputations contained in the January Posts can be gleaned by reference to the comments made in response to them, including ones which describe the applicant as a "bully", "a worm of a girl", an "ar*****e" and having a "disgusting attitude".
18 Counsel for the applicant submitted that the damage caused by the defamatory statements are "numerous and difficult to quantify" and that the ongoing impact on the applicant has been significant, relying on evidence set out in Litster 1 paragraphs [27] and [28]. Those effects include anxiety, illness, stress and nervousness, loss of appetite and sleep, and an adverse impact on Ms Russell's work, social life and well-being. The effects also include damage to Ms Russell's reputation due to the way in which she and the third respondent's working lives overlapped particularly in the arts and entertainment industry, and the concomitant overlap in their social media audiences.
19 Given the Take Down Order with respect to the January Posts was not pressed as against the first respondent, counsel's submissions were confined to re-publication of the Main Post. He referred the Court to the decision of Capilano Honey Ltd v Dowling (No 2) [2018] NSWCA 217 at [105] in which Basten JA, with whom Beazley P and McColl J agreed, said, in the context of Take Down Orders:
Of course, there will be further publications each time a member of the public obtain access to the relevant website, but, at least arguably, where it is likely that relevant damage has already been done, there will be greater reluctance to provide interlocutory relief in essentially the same form as final relief, absent some indication that only limited damage has been done and much more is likely to follow.
20 The first respondent's counsel submitted that to the extent damage has occurred, it has already been done. The nature of the Main Post and its likely audience are such that, given it has already been taken down, it is unlikely to do further damage. It was submitted that there was no evidence of any intention to re-publish any of the matters in the Main Post, nor an intention to re-publish those matters if not restrained by the Court. On that basis, it was submitted that the injunction should not be granted against the first respondent in relation to the Main Post. In relation to the January Posts, counsel for the first respondent submitted that orders, if any are to be made, should be directed to the third respondent.
21 This proposition was rejected by counsel for the applicant. It was submitted that the first respondent is a small company controlled by the third respondent and, given the propensity of its controller to publish, there is a risk that the first respondent, by way of the third respondent, could publish further.
22 Counsel for the applicant drew my attention to the Defence filed by the first respondent, which denied publishing the material contained in the Main Post. Counsel submitted that it would have been easy for the first respondent to put some material before the Court to "provide a factual foundation for that suggestion".
23 The applicant's counsel submitted that on its face, the account which posted the Main Post was that of the first respondent as the Instagram handle, being "s3_studio", is the name of the first respondent. The Main Post also contains the phrase "Reopening Cancelled", which the applicant's counsel submitted is a "business-oriented notification". The applicant's counsel referred to Litster 1, particularly to documents that were provided by the second respondent to the applicant in relation to an option to purchase the business of the first respondent, and submitted that those documents include a business profile for the first respondent which identifies that it has an Instagram account.
24 All of those matters, in the applicant's counsel's submission, support the inference that the Instagram account is controlled, owned and operated by the first respondent. Whether a natural person pressed "send" does not, in the applicant's submission, change the fact that the first respondent's company was the publisher of the post on its Instagram account. Counsel for the applicant submitted that, in the absence of any evidence to the contrary, a prima facie case is established that the first respondent is the publisher of the Main Post.
25 The applicant's counsel submitted that there is a risk that the first and third respondent may make further defamatory publications, which is emphasised by the fact that the January Posts were published after the First Concerns Notice was sent, and after the proceedings had commenced. Furthermore, based on Litster 1 the January Posts may remain available on the third respondent's Instagram account. Counsel for the applicant submitted that his client's concerns in this regard are exacerbated by the fact that she has no direct way of knowing if any further publications are made by the third respondent as she is blocked from his Instagram account.
26 With respect to the balance of convenience, counsel for the applicant submitted that there is little to be said against the granting of the injunctions for the following reasons:
The first respondent no longer operates the business.
It is a two dollar company and its sole director and secretary, the third respondent, has moved overseas and therefore the prospect of actual recovery, should damages be awarded may be difficult to recover.
The damage to the applicant is significant and extensive, however due to the nature of social media, it is difficult to apprehend its full extent. In this regard counsel for the applicant referred to the "grapevine effect" referred to by Gleason J in Webster v Brewer (No 3) [2020] FCA 1343 at [44] as follows:
Allowance should be made for the "grapevine effect" (which recognises that the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published); the tendency of the poison in the defamatory publications to percolate through underground passages and contaminate hidden springs or to be driven underground only later to emerge from their lurking place
27 These factors all, according to counsel for the applicant, mean that damages will not be an adequate remedy - they will be difficult to assess and probably difficult to recover.