Sakr v Australian Broadcasting Corporation

District Court of NSW|2015-02-12

Solicitors: Plaintiff: O'Brien Solicitors Defendant: Australian Broadcasting Corporation - Legal & Business Affairs File Number(s): 2014/316552

Judgment

These are my reasons for rulings on 12 February 2015.
The plaintiff brings proceedings for defamation for a broadcast of "Media Watch" on 24 March 2014 and subsequent publications through iView and on the ABC website. The defendant challenges the four imputations pleaded and the particulars of aggravated compensatory damages. Both sides also seek early production or retention of electronically stored information (ESI) and other transient records which are considered relevant to the proceedings and which might otherwise, by reason of the ephemeral nature of such records, not otherwise be retained.

The relevant principles

The test to apply to challenges to the capacity of imputations is a generous one (Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 at [6]), particularly where having regard to the ephemeral nature of a television broadcast (Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158). In Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [135] - [136], the court held that the determination of capacity is an issue of generosity and not of parsimony, as well as being a "matter of impression … the impression is not of what the words mean but of what a jury could sensibly think they meant".
The correct approach to objections to the form of imputations is explained in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, where Gleeson CJ pointed out that if the matter complained of said "X is disgusting", an imputation in those terms did not require further glossing. The NSW Court of Appeal has further explained these principles in Younan v Nationwide News Pty Ltd [2013] NSWCA 335 at [20]. Objections to form in this application included the familiar complaint that the imputations repeated the words of the matter complained of. That is permitted as long as those words accurately encapsulate the sting (Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213; John Fairfax Publications Pty Ltd v Blake; David Syme v Blake (2001) 53 NSWLR 541 at [52] - [54]) and while concerns were raised in Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255, there have been changes in legislation and rules, and the decision does not in any event stand for the principle that the words of the matter complained of cannot be used.
Having noted these principles I now consider the parties' submissions as to the form and capacity of the imputations. Mr Molomby SC indicated that brief reasons would suffice, by reason of the familiarity of the principles in question.

Imputation 4(a)

The defendant's objection to the capacity of imputation 4(a) is well founded. The matter complained of does not assert that the plaintiff is a supporter of the brutality of the Assad regime; to the contrary, she refuses to admit that brutality is occurring, in that she does not accept that chemical weapons are being used and blames foreign invaders, not the Assad regime, for what is occurring (lines 25 - 40).
While an imputation of supporting the regime (which is portrayed as brutal) is conveyed, an imputation of supporting the brutality must fail in limine.
This imputation is struck out with leave to replead, to enable the plaintiff to identify the sting more accurately.
Objections were also raised in relation to the use of the words "support" and "brutality", which are dealt with in more detail below.

Imputations 4(b) and 4(c)

The objections to imputations 4(b) and 4(c) relate to the use of the word "brutal" (which occurs in the matter complained of) and, further, to the use of the word "support" in imputation 4(c) (which does not occur in the matter complained of, although "backs", "express solidarity" and "powerful PR for a brutal regime" appear). The defendant also objects to the use of the word "protects" in imputation 4(b).
While pleadings which contain the actual words of the matter complained of must be carefully scrutinised, the repeated references to the brutal Assad regime capture the sting so well that the plaintiff ought not to be obliged to consult a thesaurus for an alternative phrase.
Mr Lewis submitted that these terms were so ambiguous and general in terms that his client did not know the case it had to meet. For the reasons explained by Hutley JA in Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 at 688B - C, in relation to the same complaint, this is not an objection of substance.
The meaning of "support" has been helpfully explained by Mr Molomby SC with reference to the relevant portions of the matter complained of and no further gloss is needed. The imputations should be read in the context of the matter complained of, not as a stand-alone particular that is construed without the benefit of context.
The defendant's objection to the use of the word "protects" in imputation 4(b) is similarly without foundation.
A submission that the imputations 4(a) and 4(b) did not differ in substance was abandoned when Mr Molomby SC pointed out that imputation 4(a) is an imputation of condition while imputation 4(b) is an imputation of an act. The alternative submission that they are fallbacks to each other must fail for the same reason.
These imputations will go to the jury.

Imputation 4(d)

The difficulty with this imputation is the importation of a concept that the plaintiff "tried to" create favourable propaganda for the brutal Assad regime, when the matter complained of stated in unambiguous terms that the story in which she participated was "powerful propaganda"; similarly, her participation in the delegation to Mr Assad resulted in "useful propaganda" in the form of a social media post on Instagram.
Mr Molomby SC explained the use of "tried to" as being that the plaintiff was not the principal actor. Additionally, the disapproving tones of Mr Barry and the references to widespread criticisms of these activities conveyed the impression that the attempts at propaganda had been unsuccessful.
The imputation of creating propaganda does not require that it be received with approval. The nature of propaganda is such that, in fact, the reverse is often the case, hence the pejorative nature of the meaning of this word.
This imputation is struck out with leave to replead.

The particulars of aggravated damages

The particulars of aggravation are pleaded at paragraph 6 of the statement of claim as follows: 1. The plaintiff's knowledge of the falsity of the imputations; 2. The defendant's refusal to place the plaintiff's reply to the matter complained of on the Media Watch website linked to the matter complained of in the same manner as the responses by the journalist Chris Ray; 3. The defendant's contemptuous action in placing the plaintiff's reply to the matter complained of among viewers' comments, separated into two parts, and with part of it omitted; 4. The defendant's failure to answer letters of protest from the plaintiff, including to its Managing Director Mark Scott; 5. The defendant's distortion of the Good Weekend article by representing that it did not include mention of the political position of the delegation of the plaintiff joined, whereas the article said that the delegation was "opposed to Western intervention in the conflict", and by representing that the article did not acknowledge that she had met President al-Assad, whereas the article said so.
The general objection to these particulars is made on the basis that the only claim which it is possible to make is for failure to apologise, in circumstances where such failure goes beyond a general damages issue (Clark v Ainsworth (1996) 40 NSWLR 463), which basis has not been identified here.
To accept such a submission would be to ignore the profound changes in publication arising from the establishment of interactive websites such as that maintained by the defendant for the purpose of publishing not only the persons referred to in the broadcast, but to interested members of the public wishing to express a view. The plaintiff's complaint is that while the reply from the journalist who travelled with her was treated with deference, her reply was cut into pieces and part omitted. Mr Barry explains, in the matter complained of, that these replies may be seen on the website, and the transcript contains links to the journalist's reply (but not to the plaintiff's long letter).
The challenges to defamation law from the fast-changing nature of electronic publication are constant. When considering the nature of conduct traditionally considered as giving rise to aggravated compensatory damages, it is important to take these changes into account. I am satisfied that, in general terms, wrongful refusal to publish an apology of the kind identified by the plaintiff, in circumstances where the defendant maintains a website for such publications, is capable of amounting to a wrongful failure to publish, which is relevant as being aggravating conduct at the time of publication.
However, there is no obligation on the defendant to answer "letters of protest" from the plaintiff. Failure to answer correspondence is not of itself an aggravating factor, and particular 6(d) will be struck out.

The plaintiff's Notice to Produce

The plaintiff called on a notice to produce on the defendant in the following terms: 1. Documents sufficient to show the size of the audience for Media Watch, as surveyed or estimated, on 24 March 2014, or if not available for that date, on the date or for the period nearest to that date, in each capital city and any other areas for which there are such surveys or estimates. 2. Documents sufficient to show the size of the audience for Media Watch, as surveyed or estimated, on 25 March 2014, or if not available for that date, on the date or for the period nearest to that date, in each capital city and any other areas for which there are such surveys or estimates. 3. Documents sufficient to show the size of the audience for Media Watch, as surveyed or estimated, on 26 March 2014, or if not available for that date, on the date or for the period nearest to that date, in each capital city and any other areas for which there are such surveys or estimates. 4. Documents sufficient to show the number of occasions on which persons have obtained access to the Media Watch programme of 24 March 2014 through iView. 5. Documents sufficient to show the number of occasions on which persons have obtained access to the matter complained of through iView. 6. Documents sufficient to show the number of occasion on which persons have obtained access to the Media Watch programme of 24 March 2014 through the Media Watch website. 7. Documents sufficient to show the number of occasions on which persons have obtained access to the matter complained of through the Media Watch website. 8. Documents sufficient to show the number of occasions on which persons have obtained access to the transcript of the matter complained of through the Media Watch website. 9. All correspondence, whether on paper or electronic, received about the matter complained of.
While it is desirable that the defendant be put on notice to retain such documents now, the purpose for requiring production of these documents now was unspecified. I was informed by Mr Molomby SC that the documents were sought to enable the plaintiff to answer a request for particulars of who downloaded the matter complained of (Dow Jones & Co v Gutnik (2001) 2010 CLR 575), which the plaintiff is obliged to provide in all cases involving electronic publication: see the cases discussed in Lighthouse Forward Planning Pty Ltd & Anor v Queensland Newspapers Pty Ltd & Ors [2014] QSC 217.
However, Mr Molomby SC agrees that the obligation lies on the plaintiff to provide these particulars. It is not appropriate to require the defendant to provide this information. He has withdrawn the call on the Notice to Produce, but confirms that such documents will be required when discovery and interrogatories take place.

The defendant's notice to retain documents

The defendant in these proceedings has followed the commendable process of identifying certain discoverable documents now, rather than waiting for discovery and interrogatories, when it may be met with the answer that documents of this transient nature were not retained.
One of the most significant impacts that electronically stored information (ESI) has had on discovery is the increasing complaint that vital electronic records are no longer available because they have been deleted or destroyed. In Brookshire Brothers Ltd v Aldridge 2014 W L 2994435 (Tex) (3 July , 2014) at p. 12, Lehrman J of the Texas Supreme Court noted that: "[b]ecause of the prevalence of discoverable electronic data and the uncertainties associated with preserving that data, sanctions concerning the spoliation of electronic information have reached an all-time high: Dan H Willoughby Jr et al., "Sanctions for E-discovery Violations: By the Numbers", 60 Duke L J 789 at 790 (2010)."
In a letter dated 27 November 2014, the sought the plaintiff to retain documents in the following terms: "Without limiting your client's general obligation to preserve documents of relevance to these proceedings, we hereby put you on notice that we regard documents falling within the following categories as being of potential relevance to the matters in issue in these proceedings and require that they be preserved: 1. All documents recording or referring to communications between your client and the Syrian government or any agency, department, ministry, employee or other representative thereof; 2. All documents issued or given to your client on behalf of the Syrian Government or any agency, department, ministry, employee or other representative thereof; 3. All other documents concerning or relating to your client's visit to Syria in later 2013 and early 2014 and the organisation thereof, including travel and accommodation arrangements associated with the visit; 4. All documents recording or referring to communications between your client and the Wikileaks Party or any office holder, employee, official or other representative thereof; 5. All documents recording or referring to statements by your client regarding the conflict in Syria, the Syrian government, the use of chemical weapons and Bashar al-Assad; and 6. All documents recording or referring to communications between your client and Chris Ray arising out of or relating to Mr Ray's journalistic coverage of your client's visit to Syria. For the avoidance of doubt, a reference to "document" includes: - Anything on which there is writing; - Anything on which there are marks, figures or symbols or perforations having a meaning to persons qualified to interpret them; - Anything from which sounds, images or writing can be reproduced, with or without the aid of anything else; or - A map, plan, drawing or photograph; and includes such a thing which is stored or recorded electronically, including on a computer, a mobile telephone or any other device or which consists of an email, text messages or internet posting."
For the present, it is necessary only for the defendant's request to be noted. It is, however, a wise step for the defendant to have taken, and a practice which should receive wider currency, particularly in defamation proceedings, in order to avoid the difficulties which subsequently occurred in Palavi v Queensland Newspapers Pty Ltd & Anor (2012) 84 NSWLR 523 and Palavi v Radio 2UE Pty Ltd [2011] NSWCA 264.

Costs

The parties have each enjoyed success and failure. The appropriate order is for the costs to be the defendant's costs in the cause.

Orders 1. Strike out imputation 4(a) with leave to replead. 2. Imputations 4(b) and 4(c) will go to the jury. 3. Strike out imputation 4(d) with leave to replead. 4. Strike out particulars of aggravation 6(d). 5. Strike out particulars of aggravation 6(e) with leave to replead. 6. Note the plaintiff's call on the notice to produce is withdrawn and that the defendant has requested the plaintiff to retain the documents set out in paragraphs 1 to 6 of the defendant's letter dated 27 November 2014. 7. The plaintiff's amended statement of claim is to be filed and served in 7 days. 8. Stand the matter over to Thursday 26 February 2015 at 2:00pm before Gibson DCJ. 9. Costs are to be defendant's costs in the cause.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 March 2015

At a glance

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Judgment (13 paragraphs)

Parties

Cases Cited (13)

Cited By (1)