Shortly after the commencement of the Narri Leaks Facebook page, posts were published on 16 and 17 June 2015 answering the rhetorical question "But who is Narri Leaks?". The post on 17 June 2015 stated:
… Who is Narri Leaks, it's a panel of 4 led by Ann Loder and 3 others who for the moment won't be named, a farmer, an accountant and a lawyer. That will do for the next couple of weeks.
At trial, the case against Ms Loder was put on two bases, but only the first is of present significance: Judgment at [161]-[162]. Mr Bolton contended that Ms Loder was liable for publication of the defamatory matter on the Narri Leaks Facebook page by reason of her subsequent endorsement or adoption of the Narri Leaks posts which were published by Mr Stoltenberg.
[2]
Primary judge's reasons
The primary judge addressed the secondary publisher case against Ms Loder at Judgment [165]-[169]:
[165] I will first address the claim that Ms Loder is liable for publication of the matters complained of by reason of her subsequent endorsement or adoption of the Narri Leaks posts which were published by Mr Stoltenberg. As Isaacs J stated, "[A]ll who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication": Webb v Bloch (1928) 41 CLR 331; [1928] HCA 50 at 364. This principle extends to those who encourage or authorise a primary author: Ives v The State of Western Australia [2010] WASC 339 at [7]; Kenyon v Sabatino [2013] WASC 76 at [14]-[17]; Watts v Times Newspapers Ltd [1997] QB 650 at [60]-[63]; Brown on Defamation (2nd ed) at [7.2].
[166] A party may be a secondary participant and have responsibility for the continued publication of defamatory material where they consented to, approved of, adopted, promoted or ratified the defamatory material: Urbanchich v Drummoyne Municipal Council [1991] Aust Torts Reports 81-127 at 69,193; Google Inc v Duffy (2017) 129 SASR 304; [2017] SASCFC 130 at [130]-[133]; Rana v Google Australia [2013] FCA 60 at [51]; Visscher v Maritime Union of Australia (No 6) at [20], [22], [29]; Wishart v Murray.
[167] Liability as a secondary publisher for failure to remove defamatory material requires that there be a failure to take advantage of an opportunity to remove the allegedly defamatory material which failure shows consent, approval, adoption or promotion of the presence of the statement: Google Inc v Duffy at [131]; Urbanchich v Drummoyne Municipal Council at [7]; Byrne v Deane [1937] 1 KB 818; Rana v Google Australia at [51]; Visscher v Maritime Union of Australia (No 6) at [29].
[168] This requires proof that the defendant is aware of the existence of the defamatory material, had been requested to remove it, had the ability to remove it and had failed to remove it within a reasonable period, leading to the inference that the defendant accepted responsibility for the continued publication of the defamatory material: Frawley v New South Wales [2006] NSWSC 248 at [15].
[169] If by words or conduct a person draws the attention of another to defamatory words then there has been primary, or at least secondary, participation in the publication. In Google Inc v Duffy, Kourakis CJ said:
[133] There is a connection between the concept of consent, approval and adoption postulated in Urbanchich and the concept of authorisation explained by Gaudron J in Thompson. Consent, approval or authorisation to display defamatory material, if given in advance, will generally render the owner or occupier of the property a publisher and primary participant. Positive acts which demonstrate approval, adoption or promotion of the presence of publication, at least if publically communicated, will serve to make the building owner or occupier liable as a participant in the publication. Approval, adoption or promotion cannot practically be given without knowledge of the presence of defamatory material, and by reason of that knowledge the building owner or occupier may be liable either as a publisher depending on the particular act, or as a secondary participant in the publication of another. Adding to the poster in a way which highlights it or points it out may be an act of authorisation which attracts liability. If one by words or conduct draws the attention of another to defamatory words then there has been primary, or at least secondary, participation in the publication: Hird v Wood (1894) 38 Sol J 234. Practically, the drawing of attention to a defamatory statement cannot occur without the person knowing, or being in a position to know, of the presence of the defamatory material in what is being pointed out.
Applying the test stated by Kourakis CJ in Google Inc v Duffy (2017) 129 SASR 304; [2017] SASFC 130 at [133], the primary judge rejected Mr Bolton's case that "liking" a post, on the evidence before him, constituted a level of endorsement of the publication by Mr Stoltenberg to render Ms Loder also liable as a publisher: Judgment at [171]. That finding disposed of the case against Ms Loder, except with respect to the third matter complained of.
As to the third matter, the primary judge found at Judgment [173] that Ms Loder's comment on 27 June 2015 was in a different category, given that Ms Loder wrote:
Ann Loder: "…Anyone else agree about getting ICAC and The Minister for local government involved need to like this post. We need to let Council know we are serious and are not going to be intimidated by them." (Emphasis in original.)
The primary judge gave the following reasons at Judgment [174]-[175] for finding that Ms Loder was liable for secondary participation in the publication:
[174] The comment is a specific endorsement of the second matter complained of. It is plain that Ms Loder's comment, together with the second matter complained of, was downloaded and read by others. So much is apparent from the comment stream itself which forms part of the third matter complained of. This comment falls squarely within the class of conduct Kourakis CJ described in Google Inc v Duffy as secondary participation in publication.
[175] My finding is that Ms Loder has, by words and conduct in this instance, drawn the attention of another to defamatory words. Adding her comment in the way she did, urging others to express their agreement with the post I have found to convey a defamatory imputation, was an act of authorisation which attracts liability. She thereby is liable for the second matter complained of. There has been participation in the relevant sense in the publication of the second matter complained of by Ms Loder. It is not to the point that Ms Loder did not intend to publish the defamatory material or that her attention was focussed on part only of the second matter complained of.
[3]
Draft notice of appeal
Ms Loder's draft notice of appeal contains four grounds directed to the single issue of whether the comment by Ms Loder following a defamatory post by Mr Stoltenberg on the Narri Leaks Facebook page was sufficient to make her liable as a secondary publisher of the defamatory post.
Ground 1 asserts that Ms Loder's comment did not amount to consent, approval or ratification by her of the defamatory material in the second matter complained of. Ground 2 asserts that the comments' stream to the defamatory post - the subject of the second matter complained of, was not sufficient to infer that Ms Loder's comment thereby drew the attention of others to the defamatory post. Ground 3 asserts that there must be some responsibility accepted for the ongoing publication of the defamatory matter to others, and that his Honour failed to take this into account. Ground 4 asserts that Ms Loder did not intend to publish the defamatory matter and that her attention was focused on the part only of the matter complained of and that his Honour failed to take this into account.
[4]
Submissions
Counsel for Ms Loder submitted that the proposed appeal raised a question of public importance and a clear issue of principle in relation to the liability of a third-party commentator on social media platforms, such as Facebook, for the defamatory publication of another person.
It was further submitted that the findings against Ms Loder in the present case as a third-party commentator may cause any potential commentator to be reluctant to speak where a primary post is potentially defamatory and that would promote a chilling effect on the fine balance between the protection of reputation and freedom of speech.
[5]
Disposition of application
Contrary to the submissions of Ms Loder, the proposed appeal does not involve a question of principle, or of public importance. The principles sufficient to make a person liable as a secondary publisher of a defamatory matter are well-established. Many of the cases relate to trespass to property, where hardcopy defamatory material is affixed to a building or structure maintained by another. However, as Kourakis CJ observed in Google Inc v Duffy at [124], the analogy of the property cases with the liability of a person who posts comments on a webpage is far from perfect.
In the property cases such as, Urbanchich v Drummoyne Municipal Council [1991] Aust Torts Rep 81-127 and Byrne v Deane (1937) 1 KB 818, the liability of the owner of the building or structure requires proof that the defendant is aware of the existence of the defamatory material, had been requested to remove it, had the ability to remove it and had failed to remove it within a reasonable period, leading to the inference that the defendant accepted responsibility for the continued publication of the defamatory material: Frawley v New South Wales [2006] NSWSC 248 at [15] (Simpson J).
By contrast, the present case concerns the liability of a person who posts a comment on a webpage.
Google Inc v Duffy involved the liability of hosts of internet servers and internet search engines. That is a different factual circumstance to the present case. In Google Inc v Duffy the plaintiff found that a search of her name resulted in defamatory extracts/snippets, as well as hyperlinks to a third-party website called "The Rip-Off Report" and Google had refused to take the material down. Given the volume of data passing through, Google could not have known of the defamatory material, but became liable once it was put on notice and refused to take action to remove the defamatory material. Kourakis CJ remarked at [124] that "… the need to ensure coherence in the approach to internet communications requires some consideration of the analogy" with the "trespass" cases as his Honour described them, before referring to Byrne v Deane and Urbanchich. The critical reasoning of Kourakis CJ at [133], which the primary judge set out in his reasons at Judgment [169], is reproduced above at [219].
Ms Loder does not complain that the primary judge misstated the principles relating to her participation in the publication of the third matter complained of, except for one aspect of the remarks of Kourakis CJ in Google Inc v Duffy at [133], where his Honour cited Hird v Wood (1894) 38 Sol J 234 for the proposition that "[I]f one by words or conduct draws to the attention of another to defamatory words then there has been primary, or at least secondary, participation in the publication".
Hird v Wood involved a placard containing allegedly defamatory material put up on a roadway near where a gala event was taking place, and the defendant took up position on a stool and continually pointed to the placard with his finger and thereby attracted it to the attention of those who passed by. The trial judge held that there was no evidence of publication and directed a verdict for the defendant. On appeal, Lord Esher MR, and Lopes and Davey LJJ held that there was evidence of publication which ought to have been left to the jury and ordered a new trial.
Read in the context of the passage in Google Inc v Duffy at [133], the statement by Kourakis CJ about which Ms Loder complains is unexceptional. The context of the statement was the previous sentence in [133] referring to the trespass cases and the potentiality that conduct which highlights or points to defamatory material may amount to an act of authorisation which attracts liability.
Ms Loder next submitted that the primary judge misapplied the principles stated in Google Inc v Duffy by limiting his consideration to certain parts of the comments posted by Ms Loder and not taking into account her subjective intentions. The latter was a reference to Ms Loder's evidence in cross-examination that it was not her intention to give readers the understanding that she was urging them to like the post she had made, although she agreed that "looking back on that" this was her intention.
On a fair reading of his Honour's reasons, I do not agree that his Honour limited his consideration to certain parts of the comments posted by Ms Loder. His Honour had regard to Ms Loder's comments in the context of the whole of the third matter.
As to the relevance of Ms Loder's subjective intentions, reliance was placed upon Byrne v Deane, however that case does not assist Ms Loder.
In Byrne v Deane the majority of the English Court of Appeal (Greer LJ at 830 and Greene LJ at 838) held that the proprietor and the secretary of a golf club were responsible for the continued publication of a defamatory poem about the plaintiff affixed to an internal wall of the Club house. The facts were that it was necessary to obtain the consent of the secretary to post such documents and the secretary had left it on the wall as she "saw no harm in it". The secretary's evidence that she saw no harm in leaving the defamatory poem on the wall of the clubhouse was relevant to whether the secretary had accepted responsibility for the continued publication of the defamatory matter, which the majority found she had.
Counsel for Ms Loder acknowledged that he could not point to any authority for the proposition that the subjective intentions of the person posting a comment was relevant to whether by that conduct the defendant consented to, or approved of, or adopted, or promoted, or ratified the defamatory material. It should be observed that Ms Loder did not seek to avoid liability as a subordinate publisher by proving that she did not know, and could not reasonably have known, that the publication was likely to contain defamatory material: cf Google v Duffy at Kourakis CJ at [102], Peak J at [354], [582].
This is a clear case for refusing leave. No question of principle, or of public importance is involved. There has not been shown to be any injustice to the applicants which is reasonably clear, going beyond what is merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [33]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28].
There is an additional consideration here. This Court has emphasised the need for restraint in granting applications for leave to appeal in cases where the amount in issue is below the threshold of $100,000: Daily Examiner Pty Ltd v Mundine; Brown v Mundine [2011] NSWCA 126 at [4]-[5]; Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 at [2]-[3]; and Be Financial at [37]-[39]. That consideration is particularly significant in this case, given the small amount at issue of $10,000.
Leave to appeal should be refused. It follows that it is not necessary to address Mr Stoltenberg's draft notice of contention.
[6]
Draft notice of cross-appeal
Mr Bolton's application for leave to cross-appeal was defensive only. As Ms Loder's application for leave to appeal should be refused, it is not necessary to address the proposed cross-appeal. The application for leave to cross-appeal should be dismissed.
[7]
Ms Loder's leave application
Ms Loder's application for leave to appeal has failed. There is no reason why costs should not follow the event: UCPR, r 42.1.
[8]
Mr Bolton's leave application
As to Mr Bolton's application, there are good reasons for displacing the usual rule that costs follow the event: UCPR, r 42.1. First, Mr Bolton's leave application was entirely defensive, having been filed in response to Ms Loder's leave application.
Second, whilst it has not been necessary for the Court to determine the merits of this application, it is not appropriate to describe the position taken by Mr Bolton as a capitulation.
Third and related to the previous point, both parties acted reasonably in commencing and defending Mr Bolton's leave application, and the conduct of the parties continued to be reasonable until the further pursuit of the leave application became futile: Re Minister for Immigration and Ethnic Affairs (Cth); Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6.
The proper exercise of the Court's discretion in the present case is that there should be no order as to the costs of Mr Bolton's application for leave to cross-appeal. This is a case where a supervening event, namely the refusal of leave with respect to Ms Loder's proposed appeal, removed the subject of the dispute with respect to Mr Bolton's proposed cross-appeal.
[9]
Conclusion and orders
The appeal by Mr Stoltenberg has failed. Ms Loder's application for leave to appeal should be refused. Mr Bolton's application for leave to cross-appeal should also be refused.
I propose the following orders:
2018/334329 (Mr Stoltenberg's appeal)
1. Appeal dismissed.
2. Appellant to pay the respondent's costs.
2018/324176 (Leave to appeal/cross-appeal)
1. Summons seeking leave to appeal filed 21 November 2018 be dismissed with costs.
2. Cross-summons for leave to cross-appeal filed 31 January 2019 be dismissed with no order as to costs.
BRERETON JA: I agree with Gleeson JA.
[10]
Amendments
26 March 2020 - Amendment to Catchwords
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: 26 March 2020
Cush v Dillon (2011) 243 CLR 298; [2011] HCA 30
Daily Examiner Pty Ltd v Mundine; Brown v Mundine [2011] NSWCA 126
Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56
Duke of Brunswick v Harmer (1849) 14 QB 185
Enders v Erbas & Associates Pty Limited [2014] NSWCA 70
Frawley v New South Wales [2006] NSWSC 248
Google Inc v Duffy (2017) 129 SASR 304: [2017] SASFC 130
Hird v Wood (1894) 38 Sol J 234
Jameel v Dow Jones & Co Inc [2005] QB 946
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188
Lindholdt v Hyer [2008] NSWCA 264; (2008) 251 ALR 514
Marshall v Smith [2013] WASC 452
Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68
Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374
Papaconstantinos v Holmes 'A Court (2012) 249 CLR 534; [2012] HCA 53
Payne v Parker [1976] 1 NSWLR 191
Re Minister for Immigration and Ethnic Affairs (Cth); Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
Sims v Jooste (No 2) [2016] WASCA 83
Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35
Theodore Skalkos v Joseph Assaf [2002] NSWCA 14
Toogood v Spyring (1834) 1 G M & R 181; 149 ER 1044
Trumm v Norman [2008] EWHC 116
Urbanchich v Drummoyne Municipal Council [1991] Aust Torts Reports 81-127
Vakras v Cripps [2015] VSCA 193
Vassiliev v Frank Cass Co Ltd [2003] EWHC 1428
Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350
Category: Principal judgment
Parties: Stephen Robert Stoltenberg (Appellant)
Ann Loder (Applicant)
Conrad Moran Bolton (Respondent / Cross Applicant)
Representation: Counsel:
Ms S Chrysanthou / Mr B C Dean (Appellant)
Mr R W Potter / Ms L Andelman (Applicant)
Mr M Richardson / Ms M Rabsch (Respondent / Cross-Applicant)
Solicitors:
Kalantzis Lawyers (Appellant)
Peter James Breen (Applicant)
Bell & Johnson Solicitors (Respondent / Cross Applicant)
File Number(s): 2018/334329 (Stoltenberg v Bolton)2018/324176 (Loder v Bolton)
Decision under appeal Court or tribunal: Supreme Court of New South Wales
Jurisdiction: Equity Division
Citation: [2018] NSWSC 1518
Date of Decision: 15 October 2018
Before: Payne J
File Number(s): 2015/366431
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
HEADNOTE
[This headnote is not to be read as part of the Judgment]
In June and July 2015, the appellant Mr Stephen Stoltenberg, made a series of posts on a public Facebook page styled "Narri Leaks", which allegedly conveyed imputations that the respondent, Mr Conrad Bolton, the Mayor of Narrabri Shire Council had been corrupt, dishonest and intimidating in his role as Mayor, and that this conduct warranted an ICAC inquiry. More specifically, the posts allegedly asserted that Mr Bolton had been corrupt in selecting the general manager of the Council in 2015 and that he had provided the Independent Pricing and Regulatory Tribunal with information he knew to be false (IPART post). The applicant, Ms. Ann Loder, made "comments" on posts made to the Narri Leaks page. Mr Stoltenberg was the administrator of, and thus had control over, the content posted to the Narri Leaks page.
Mr Bolton commenced defamation proceedings in the Supreme Court against both Mr Stoltenberg and Ms Loder. The trial judge held that the Facebook posts conveyed imputations defamatory of Mr Bolton, and that Mr Stoltenberg had no defence to five of the matters complained of. His Honour also held that the Facebook "comment" made by Ms Loder endorsing one of Mr Stoltenberg's posts had amounted to secondary publication of the defamatory material. Mr Stoltenberg was ordered to pay damages of $100,000 and interest of $10,000, plus costs. Ms Loder was ordered to pay damages of $10,000.
Mr Stoltenberg appealed against the judgment and Ms Loder sought leave to appeal. Mr Bolton sought leave to cross-appeal against the rejection of other parts of his claim against Ms Loder. He only pressed his leave application if Ms Loder was granted leave to appeal.
The principal issues before the Court were:
in relation to publication of the posts, whether evidence outside the particularised case had been erroneously admitted; whether Mr Bolton's wife was acting on his behalf in downloading the posts on the Narri Leaks page; and whether certain answers by Mr Stoltenberg to interrogatories were admissions of the extent of publication;
in relation to the imputations conveyed by the posts, whether the trial judge erred in finding that three imputations were conveyed by the IPART post;
whether the trial judge erred in rejecting the defences of common law qualified privilege and statutory qualified privilege under s 30 of the Defamation Act 2005 (NSW); and
whether there should be a grant of leave to appeal to permit Ms Loder to challenge the trial judge's finding that Ms Loder had engaged in secondary publication.
Held, rejecting the appeal and applications for leave to appeal and for leave to cross-appeal (per Gleeson JA; Macfarlan and Brereton JJA agreeing)
As to issue (i):
The trial judge did not err in the admission of evidence on publication: the evidence of publication was rightfully admitted, Mr Bolton's wife was not acting on his behalf in downloading the posts, and there was no error in the weight given to admissions made by Mr Bolton in answer to interrogatories as proof of the extent of publication: [69]-[76], [78]-[87], [91], [93]-[94], [99]-[102], [104]-[107].
Sims v Jooste (No 2) [2016] WASCA 83;
Duke of Brunswick v Harmer (1849) 14 QB 185; and
Jameel v Dow Jones & Co Inc [2005] QB 946 considered.
As to issue (ii):
The trial judge did not err in finding that three imputations were conveyed by the IPART post: [124]-[128].
As to issue (iii):
The trial judge did not err in rejecting the defence of common law qualified privilege, chiefly because the matters complained of were published to a much wider audience than those residents of Narrabri Shire Council who were interested in Council finances: [145]-[174].
Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350;
Lindholdt v Hyer [2008] NSWCA 264; (2008) 251 ALR 514;
Vakras v Cripps [2015] VSCA 193;
Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195 considered.
The trial judge did not err in rejecting the defence of statutory qualified privilege, chiefly because the conduct of Mr Stoltenberg in publishing the posts was not reasonable in the circumstances: [181]-[210].
Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57
Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374;
Enders v Erbas & Associates Pty Ltd [2014] NSWCA 70 considered.
As to issue (iv):
No question of principle or of public importance was involved in the finding that Ms Loder's endorsement of Mr Stoltenberg's post amounted to secondary publication. Nor was there any injustice shown that was reasonably clear, particularly given the small amount in issue.
Publication by Mr Stoltenberg
No complaint is made in relation to his Honour's statement of principles concerning proof of publication. At Judgment [116], his Honour said:
The tort of defamation requires evidence of publication, or communication, of the defamatory material to a third party who comprehends it, causing harm to the reputation of the defamed: Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at [25]-[26]; Sims v Jooste (No 2) [2016] WASCA 83 at [8]-[12]. In an action for defamation involving online material, publication is established through evidence that a third party downloaded and read the material: Dow Jones & Co Inc v Gutnick at [26] and [44]. Publication, in the legal sense, may be established by pleading and proving a platform of facts from which an inference that material has been downloaded can properly be drawn. The mere fact of posting material online does not lead to an inference that it has been downloaded: Sims v Jooste (No 2) at [18]-[20].
His Honour found that Mr Stoltenberg was the author of the first to fifth matters complained of: Judgment at [117]. This finding is not challenged.
His Honour gave the following reasons for rejecting Mr Stoltenberg's submission that Mr Bolton had not proven that any one person had downloaded and read any of the matters complained of: Judgment at [117].
The first concerned an objection by Mr Stoltenberg at trial that Mr Bolton was seeking to conduct a case outside the particulars he had given. The primary judge rejected this complaint: Judgment at [112]. After reviewing the solicitors' correspondence relating to the request for particulars, and considering the requirements of Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 15.1 and 15.19(1) and the remarks of Hunt J in Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 at 192-193, his Honour found that Mr Bolton's pleading of publication was not limited by the exchange of particulars, as Mr Bolton's solicitors refused to provide the particulars of identification that had been sought: Judgment at [130].
His Honour further found that Mr Bolton was entitled to rely upon publication to Mrs Bolton who gave evidence that she had read each of the matters complained of. As indicated, his Honour found that Mrs Bolton was not the agent of Mr Bolton: Judgment at [134]-[135].
Second, and in any event, his Honour held that Mr Bolton was entitled to rely on "a platform of facts" from which inferences of downloads could properly be drawn in order to establish publication and found that there were abundant facts from which the inference that each of the matters complained of was downloaded and read could properly be drawn: Judgment at [136]. Those facts comprised:
1. answers to interrogatories provided by Mr Stoltenberg concerning the number of hits the Narri Leaks Facebook page received in the first week from 17 June 2015, and the number of readers of the Narri Leaks website for the period June 2015 to January 2016;
2. Facebook posts by Mr Stoltenberg referring to the wide readership of Narri Leaks;
3. Facebook activity logs which were eventually tendered without objection; and
4. evidence of the readership of Narri Leaks given by Mrs Bolton that people in Queensland, Wellington, Adelaide and Singleton had spoken to her indicating that they had read items on the Narri leaks website, and evidence given by Mr Webb that the Narri Leaks website was discussed at local government conferences outside the Narrabri Shire at a state and national level, including at a particular mayoral function on the Gold Coast.
Identification
No complaint is made in relation to his Honour's statement of principles concerning proof of identification. At Judgment [187], his Honour said:
Identification can be proved if the court is satisfied, by inference, that at least one person who read the matter complained of would have identified the plaintiff as the person referred to: Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570; [2016] NSWCA 283 at 597. This requires consideration of whether the publication would, reasonably in the circumstances, lead persons acquainted with the plaintiff to believe that he or she was the person referred to: David Syme & Co v Canavan (1918) 25 CLR 234; [1918] HCA 50 at 238.
His Honour found that he was comfortably satisfied that at least one person who had read each of the five matters complained of would have identified Mr Bolton as the person referred to. He gave the following reasons at Judgment [189]-[190]:
[189] … The matters complained of were all addressed to issues in Narrabri and named the Mayor as a central focus of the matter complained of. The central thesis of each of Mr Stoltenberg's posts was that Mr Bolton was responsible for various ills that Mr Stoltenberg had diagnosed. Many readers, even if only dimly aware of the Narrabri Shire councillors, would clearly have understood Mr Stoltenberg's complaints about the "Mayor" to refer to Mr Bolton.
[190] It is clear that each of the publications reasonably in the circumstances would lead persons acquainted with Mr Bolton to believe that he was the person referred to. Identification has been established.
Common law qualified privilege
No complaint is made in relation to his Honour's statement of principles concerning common law qualified privilege. At Judgment [192]-[193], his Honour said:
[192] Communications are protected where a person has a legal, social or moral interest or a duty to make a statement on an occasion and the recipient of the statement has a corresponding interest or duty to receive it: Bashford v Information Australia (Newsletters) Pty Ltd [2001] NSWCA 470 at [31]-[32] (sic). The relevant "sting" must be germane and reasonably appropriate to the occasion: Bashford at [2], adopted by a majority of the High Court on appeal at [27], [193] and [235].
[193] The question of whether the defence of qualified privilege applies depends on a close scrutiny of the circumstances of each case and the facts revolving around the publication. In Bashford, the High Court explained:
[10] These principles are stated at a very high level of abstraction and generality. 'The difficulty lies in applying the law to the circumstances of the particular case under consideration'. Concepts which are expressed as 'public or private duty, whether legal or moral' and 'the common convenience and welfare of society' are evidently difficult of application. When it is recognised, as it must be, that 'the circumstances that constitute a privileged occasion can themselves never be catalogued and rendered exact', it is clear that in order to apply the principles, a court must 'make a close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication'. (Footnotes omitted.)
His Honour observed that the debate between the parties, with respect to the defence of common law qualified privilege, focused on whether Mr Stoltenberg could establish the requisite "reciprocity of duty and interest" between Mr Stoltenberg and the recipients of his publications: Judgment at [191].
In addressing Mr Stoltenberg's submissions that a distinction is to be drawn between mass media publications and specialist web pages, and that the publication in the present case was not made to an unrestricted audience, his Honour rejected Mr Stoltenberg's submission that Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350 was incorrectly decided, noting that Mr Stoltenberg's characterisation of Narri Leaks as a "limited website publication" rather begs the question: Judgment at [195].
His Honour also rejected Mr Stoltenberg's submission that the authorities to which he referred established any generally applicable statement of principle for the purposes of the present case: Judgment at [198]-[202]. Reference was made to: Marshall v Smith [2013] WASC 452 at [33], [39]; Vassiliev v Frank Cass Co Ltd [2003] EWHC 1428 at [10]; Trumm v Norman [2008] EWHC 116 at [33]-[37]; and Brady v Norman [2008] EWHC 2481 at [24]-[26].
Statutory qualified privilege
After setting out the terms of s 30 of the Defamation Act, his Honour continued at Judgment [223]:
The test for statutory qualified privilege involves the same reciprocity of interest as in common law qualified privilege but has an additional requirement that the conduct of the defendant in publishing the matter is reasonable in the circumstances. A finding of malice negates the defence: s 30(4).
Mr Stoltenberg challenged the first sentence of this passage as containing error. So much was fairly acknowledged by counsel for Mr Bolton who accepted that the only issue at trial in relation to s 30 was the reasonableness of the conduct of Mr Stoltenberg in publishing the defamatory matters: s 30(1)(c).
On the issue of reasonableness, his Honour referred to the observations of Giles JA in Theodore Skalkos v Joseph Assaf [2002] NSWCA 14 at [135]-[137] and Hunt AJA in Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 at 387-388 in relation to the test of reasonableness and the predecessor provision in s 22 of the now repealed Defamation Act 1974 (NSW). His Honour accepted that the same test of reasonableness applies under s 30, as under the former s 22 of the 1974 Act, that is, a defendant's conduct must have been reasonable in the circumstances to publish each imputation found to have been in fact conveyed by the matter complained of: Judgment at [224]-[225].
In rejecting the defence of statutory qualified privilege, his Honour gave the following reasons at Judgment [226]-[233]:
[226] I find that Mr Stoltenberg has failed to establish that he had an honest belief in the truth of the imputations I have found were conveyed by each of the matters complained of. It is clear from Mr Stoltenberg's answers to interrogatories that he did not intend to convey the imputations pleaded. Mr Stoltenberg did not even give consideration to whether the fourth and fifth matters complained of conveyed the pleaded imputations. I reject Mr Stoltenberg's submission that he has discharged his onus by proving that the imputations he did intend to convey were the subject of reasonable conduct on his part. There was no evidence as to whether Mr Stoltenberg took any steps to prevent the pleaded imputations from being conveyed or was otherwise acting reasonably in publishing any of the matters complained of.
[227] I reject Mr Stoltenberg's submission that the Roberts v Bass presumption of honesty is a matter to be taken into account as an implication from s 30(4) in addressing the matters in s 30(3). That approach is not supported by authority and would in my view lead to an incoherent application of the statute.
[228] Further, I find that Mr Stoltenberg's failure to contact Mr Bolton, or someone else on his behalf, about the issues the subject of the matters complained of, is contrary to notions of reasonableness and independently fatal to Mr Stoltenberg's claim for statutory qualified privilege: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 2 at 574.
[229] Whilst I accept that in cases that do not involve mass media publications, it is not necessarily fatal to a defence under s 30 for the defendant to speak to or contact the plaintiff or a representative of the plaintiff prior to publication, in all the circumstances here, Mr Stoltenberg has failed to prove that he acted reasonably. It is common ground that Mr Stoltenberg made no attempt to contact Mr Bolton. There is no basis in my view for concluding that Mr Stoltenberg is relieved from the usual obligations to check defamatory allegations because he was running a public Facebook page rather than a separate website.
[230] I also find that the language used in the relevant posts was excessive and the publication itself lacked reasonableness. It is not reasonable to make the allegations of unlawful and/or corrupt conduct the subject of this case in a public Facebook page, open to the world, without seeking any comment from Mr Bolton first. In the absence of any evidence from Mr Stoltenberg I am not satisfied that he has discharged his onus of proving that his conduct was reasonable.
[231] I reject Mr Stoltenberg's submission that I would infer from his documentary tender that he acted reasonably within the meaning of s 30. The first volume contained the conduct reports I have addressed at [19], various Narri Leaks posts dealing with miscellaneous issues, press reports, letters and e-mail correspondence. The second volume consisted of a large number of text messages between Mr Stoltenberg and Mr Bolton, which ended prior to the Narri Leaks Facebook page being started. Some selected documents about the Narrabri Shire Council were also included. No evidence was given about what, if any, effect anything in these two large lever arch folders had upon any of Mr Stoltenberg's actions. Little attention was paid in written or oral submissions to any one of these voluminous documents, although some submissions were made about the Narri Leaks posts which had been tendered.
[232] The documentary tender on the First Defendant's part sits without any relevant anchor. I am not satisfied that Mr Stoltenberg had any one or any combination of those documents in his mind when publishing any of the matters complained of.
[233] The whole tenor of Mr Stoltenberg's posts the subject of the 5 matters complained of in content and tone are antithetical to notions of reasonable conduct. The language and extent of the publication was excessive and thus not reasonable.
Issues on the appeal
The notice of appeal contains 25 grounds of appeal and a total of 53 issues if sub-grounds are counted separately. It is not consistent with the requirements of the rules that the notice of appeal state "briefly, but specifically, the grounds relied on in support of the appeal": UCPR, r 51.18(1)(e). The importance of brevity and precision in formulating the grounds of appeal cannot be overstated. Prolixity is inconsistent with the just, quick and cheap resolution of the real issues in proceedings: Civil Procedure Act 2005 (NSW), s 56(1). It also obscures apparent merit: Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 at [70] (McHugh J).
In written submissions, Mr Stoltenberg identified five issues as being raised by the appeal:
(1) the significance in a defamation action based on internet content (in a non-mass context) of particulars or lack of particulars of the readers of a publication, proof of publication and extent of publication in those circumstances (Grounds 1-11);
(2) the assessment of defamatory meaning when the matter complained of is predominantly not about the plaintiff (Ground 12);
(3) the principles that apply to identification where a plaintiff is not named in the matters complained of and the relevance of proper particularisation of that identification (Grounds 13-14);
(4) the principles that apply to the common law defence of qualified privilege where the matters complained of are uploaded on a special interest website available to the public to download and the interrelationship between identification, publication and the common law defence of qualified privilege where the plaintiff is not named in an online publication (Grounds 15-24); and
(5) the defence of qualified privilege under s 30 of the Act as applies to social media publications by private individuals about politicians (Ground 25).
This outline of the issues, which was repeated by counsel in her opening oral argument, does not serve as a substitute for the proper articulation of the grounds of appeal. This has made the Court's task more difficult in ascertaining the real issues in dispute: Civil Procedure Act, s 56(1).
Publication to Mrs Bolton: grounds 1, 2 and 5
There are two parts to Mr Stoltenberg's challenge to the primary judge's finding that the matters complained of were read by and published to Mrs Bolton.
The first is that evidence of publication to Mrs Bolton was outside the particulars because she was never particularised as a recipient of the matters complained of. This complaint is answered by the reasons given above in relation to the particulars point. There was no error in the finding that the publication to Mrs Bolton was within the pleading: Judgment at [134].
The second aspect of the challenge is the contention that the primary judge erred in finding that Mrs Bolton was not acting on behalf of Mr Bolton when reading posts on the Narri Leaks website.
The primary judge found that Mrs Bolton was not "directed to the allegedly defamatory material by [Mr Bolton]", rather it was she who first drew Mr Bolton's attention to the Narri Leaks site, and that far from directing Mrs Bolton to read and download material from Narri Leaks, Mr Bolton was anxious that his wife and daughter spend less time looking at the site, or better still, not engage with it at all: Judgment at [135]. None of these findings were challenged.
Nonetheless, Mr Stoltenberg submitted that Mrs Bolton's evidence established a voluntary agency to which Mr Bolton assented. I do not agree. Mrs Bolton gave evidence in cross-examination that her husband did not tell her to monitor the site and to capture the posts. There was no evidence of any assent by Mr Bolton to the asserted voluntary agency.
In oral argument, Mr Stoltenberg submitted that Mrs Bolton was acting no differently to a paralegal or a solicitor in keeping a record of the posts. Again, I do not agree. That Mrs Bolton agreed in cross-examination that her purpose in capturing screenshots of the posts was to have a record in case her husband wanted to do anything about them was not evidence of agency or assent by Mr Bolton to that conduct. There is no error in his Honour's conclusion that Mrs Bolton was not, on the evidence, the agent of Mr Bolton.
Mr Stoltenberg further submitted that whether or not an agency is established, the cause of action based on a person like Mrs Bolton and/or anyone who is intimately involved in the prosecution of the claim is not actionable and is an abuse of process, referring to Duke of Brunswick v Harmer (1849) QB 185 and Jameel v Dow Jones & Co Inc [2005] 14 QB 946 at [56]. Alternatively, it was submitted that the circumstances of publication to Mrs Bolton would have attracted the defence of triviality under s 33 of the Defamation Act.
One difficulty with the abuse of process argument is that the point was not pleaded or raised below. Nor, was it suggested that this is an exceptional case such that Mr Stoltenberg should be allowed to rely upon a new point on appeal: Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68 at 71. In any event, this case is readily distinguishable from Brunswick v Harmer.
Admissions in contemporaneous posts
The primary judge found that Facebook posts made by Mr Stoltenberg were replete with references to the wide readership of Narri Leaks, and each of those posts contains admissions to which the hearsay and opinion rules do not apply: Judgment at [141]. Those admissions were made in the context of evidence that Mr Stoltenberg had set up and operated the Facebook page known as Narri Leaks, had access to the activity data recorded being a feature offered by Facebook to page hosts, and had translated that data into posts he authored.
His Honour's conclusion was amply supported by the findings at Judgment [142]-[148], which it is convenient to reproduce in full:
[142] On 17 June 2015, Mr Stoltenberg stated "the new Ratepayers assoc has since Monday been running a Facebook page called Narri Leaks…from a zero start, the [Facebook page] has had 10,000 hits in 2 days."
[143] Also on 17 June 2015, Mr Stoltenberg wrote "we are at near 11,000 hits , we're now being watched not just by all over the shire , but all over the country , in our 3rd day of existence" … As will become apparent, this is a significant admission by Mr Stoltenberg in the context of his common law qualified privilege defence.
[144] Also on 17 June 2015, Mr Stoltenberg wrote that:
"We were at 9800 people last night, at 11000 by 2 pm , got to 12,000 by 7pm , then the footy buggered us , stalled at 12,258… Thanks to all the people emailing in material Narrileaks@gmail.com… Had 30 emails this afternoon… We are now getting a lot of inboxing people who want to talk not in public on the open page…"
[145] On 2 July 2015, Mr Stoltenberg wrote:
This page had 21,000 hits in its first 10 days, but we were fudging a bit, not only posting all manner of embarrassing dirty laundry of counsel to draw attention, but We did spend about $400 "boosting" posts all over the state for all the second week.
Not doing either now, because we really do have 719 locals who hit like page to follow and get each post… In Narrabri Shire, we only have about 6000… So about 12% of all council's ratepayers are actively watching. Our total reach is 2414… They are mostly local… Anyone who has a legitimate complaint, post it here, big chunk of the Shire , nearly every third adult , will see it. (Emphasis added)
[146] This post refers to the period during which the second and third matters complained of were uploaded to Facebook by Mr Stoltenberg. The admission contained in the post is that "we" (which I infer is in fact Mr Stoltenberg) paid $400 to promote posts via Facebook's algorithm, making them more visible to a wider audience. Further, Mr Stoltenberg himself states that "719 locals … get each post". I infer that to access the posts made on the Narri Leaks site it was necessary only to like the site and posts by Narri Leaks, which I find were posts under that title uploaded by Mr Stoltenberg, would automatically appear in a Facebook news feed without any separate step being required. I infer that Mr Stoltenberg's reference to 719 locals who get each post is a clear admission that by 2 July 2015 there were 719 people in the position Ms Loder explained she was in who would automatically get each Narri Leaks post in their Facebook news feed without visiting the Narri Leaks Facebook page.
[147] So far as Mr Stoltenberg's reference to reach is concerned, it was submitted that I was unable to take this matter into account as there was no evidence of what "reach" meant. I reject that submission. There is evidence, from Mr Stoltenberg himself, that the "reach" figures provided in the Facebook business records which were tendered, are capable of demonstrating, at least in a broad way, the numbers of people who had access to Narri Leaks posts on the Facebook page.
[148] In any event, I have drawn inferences from the face of the Facebook business records under section 183 of the Evidence Act. Those records lead me to draw the inference that Facebook records separate interactions between a device connected to the internet and posts on the particular Facebook page, here Narri Leaks, and that those figures are reflected in the business records tendered. I infer from the business records tendered that in the context of a post, the "reach" of the post records the number of people Facebook has recorded as having viewed the post. (Emphasis in original.)
Failure to assess publication individually for each post: ground 11
Mr Stoltenberg submitted that the primary judge failed to assess the issue of publication individually for each post. This ground is directed to challenging his Honour's conclusion on publication at Judgment [157] as follows:
On the basis of the platform of facts I have described, I infer that each of the matters complained of was published by Mr Stoltenberg, in that the material which he admits he uploaded was downloaded and viewed by third parties.
The reference by his Honour to a "platform of facts" adopted the language used by Martin CJ in Sims v Jooste (No 2) at [18], citing Al-Amoudi v Brisard [2006] EWHC 1062 (QB); [2006] 3 All ER 294, in relation to proof of publication in cases involving the internet:
The "platform of facts" from which his Honour drew an inference that the five matters complained of were downloaded by somebody have been referred to above at [33]. Taken together, the admissions by Mr Stoltenberg as to the number of "hits" on the Narri Leaks site - 9,800 in the first week and 21,000 in the first 10 days, that the estimated number of readers in the period June 2015 to January 2016 depending on the story varied between 5,000 and up to 35,000, that Narri Leaks was being watched all over the State, that $400 was spent "boosting" posts all over the State for all of the second week of publication in June 2015, that on 2 July 2015 719 "locals" out of a "total reach" of 2,414 hit the "Like" button; the inferences drawn from the Facebook records as to "reach" of the posts; and the evidence of Mrs Bolton and Mr Webb of readership of the Narri Leaks website by persons outside the Narribri Shire, amply support his Honour's findings that the matters complained of were published by Mr Stoltenberg.
As to the extent of publication, there was no error by his Honour in finding that publication of the matters complained of extended to persons beyond the Narrabri Shire. Mr Stoltenberg acknowledged in his post on 2 July 2015 that the number of ratepayers in the Narrabri Shire was about 6,000: Judgment at [145]. The number of ratepayers may be contrasted with the evidence of the number of "hits" and readers of the Narri Leaks site. Importantly, there were admissions by Mr Stoltenberg concerning the number of "hits" on the Narri Leaks site of 9,800 in the first week, 12,258 readers on 17 June 2015, and 21,000 "hits" in the first 10 days, and that the estimated number of readers in the period June 2015 to January 2016, depending on the story, varied between 5,000 and up to 35,000.
In addition, there were the admissions by Mr Stoltenberg on 17 June 2015 that the site was "being watched … all over the country", on 2 July 2015 that money was being spent "boosting" posts "all over the state" and that of the total reach of 2414, "they are mostly local". Those admissions are consistent with the general evidence given by Mrs Bolton and Mr Webb of readership of the Narri Leaks site beyond the Narrabri Shire.
Common law qualified privilege: grounds 15 to 24
Grounds 15 to 24 contend that the primary judge was wrong in rejecting the defence of common law qualified privilege (Judgment at [215]) essentially for nine reasons:
1. his Honour erred in failing to take into account the findings on the issue of identification, relevantly:
1. that those persons who knew that Mr Bolton was the "Mayor" and thus identified him had an interest in the workings of the Narrabri Shire Council: Judgment at [189]; and
2. that the class of persons named by Mr Bolton in his particulars of publication and identification was limited to persons in the town of Narrabri: Judgment at [121], [206];
1. his Honour erred in finding that Visscher v Maritime Union of Australia (No. 6) was correctly decided and that evidence of publication on the internet "to the world" is evidence of excessive publication: Judgment at [194]-[196];
2. his Honour erred in failing to recognise that absent evidence to the contrary, there is a presumption that a person who visits a specialist website and reads material on that website has the relevant reciprocal interest for the purposes of common law qualified privilege, and that the onus is on the plaintiff to prove that the publication exceeded the privileged occasion: Judgment at [197]-[203];
3. his Honour erred in comparing this case to the facts in Lindholdt v Hyer [2008] NSWCA 264; (2008) 251 ALR 514, which did not relate to the internet: Judgment at [204];
4. his Honour erred in taking into account the pleading in the FASC that each matter was in fact read in each state and territory of Australia for the purposes of the defence of common law qualified privilege: Judgment at [207];
5. his Honour erred in finding that the matters complained of were published to a much wider audience than those residents of the Narrabri Shire Council interested in the finances of the Council: Judgment at [210]-[211];
6. his Honour erred in finding that publication on the Narri Leaks Facebook page was evidence of excessive publication: Judgment at [212];
7. his Honour erred in finding that Mr Stoltenberg did not have the requisite interest in publishing the matters complained of: Judgment at [213]; and
8. his Honour erred in failing to take into account in relation to the fourth matter complained of that the only evidence of publication was to Mrs Bolton, and that she necessarily fell within the privileged occasion.
The disparate complaints raised by these grounds are broadly directed to two aspects of his Honour's reasons. One concerns the findings relating to publication to persons within the Narrabri Shire. The other concerns the findings relating to publication to persons outside Narrabri Shire.
In support of these grounds, Mr Stoltenberg submitted that he was a ratepayer activist in the Narrabri Shire Council who set up the Narri Leaks Facebook page, and therefore had a special interest in publishing information the subject of the matters complained of. He further submitted that Narri Leaks was a specialist website and that its readers may be presumed to have the relevant reciprocal interest for the purposes of the defence of common law qualified privilege. That reciprocal interest was identified as an interest in receiving information about matters concerning the governance of their local council.
Relevant principles
Given the scope of the grounds of appeal, it is only necessary to refer to some matters of principle in relation to the defence of common law privilege.
In Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57, Gaudron, McHugh and Gummow JJ described the defence of qualified privilege arising out of a reciprocal duty or interest in the following terms at [62]:
The common law protects a defamatory statement made on an occasion where one person has a duty or interest to make the statement and the recipient of the statement has a corresponding duty or interest to receive it. Communications made on such occasions are privileged because their making promotes the welfare of society. But the privilege is qualified - hence the name qualified privilege - by the condition that the occasion must not be used for some purpose or motive foreign to the duty or interest that protects the making of the statement. (Citations omitted)
In Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5, Gleeson CJ, Hayne and Heydon JJ acknowledged at [10] that the circumstances that constitute a privileged occasion can themselves never be catalogued and rendered exact, and noted that "a close scrutiny of the circumstances of each case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication is required to be undertaken".
In Cush v Dillon (2011) 243 CLR 298; [2011] HCA 30, French CJ, Crennan and Kiefel JJ at [11]-[12] observed that the requirement of reciprocity of duty and interest is the hallmark of the common law defence of qualified privilege, although not a feature of the statutory defence, and continued:
[11] ... As Parke B explained in Toogood v Spyring (1834) 1 C M & R 181 at 193; 149 ER 1044), the law regards the publication of a false statement which is injurious to the reputation of a person as malicious:
unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice.
[12] The defence of qualified privilege is based upon notions of public policy, that freedom of communication may in some circumstances assume more importance than an individual's right to the protection of his or her reputation. The question of whether the person making a defamatory statement was subject to some duty or was acting in the protection of some interest, in making the statement, is to be understood in this light.
(7) Excessive publication
The seventh matter is whether His Honour erred in finding that publication on the Narri Leaks Facebook page was evidence of excessive publication.
It should be observed that the finding of "excessive publication" was not dispositive; it was an additional reason given by his Honour for rejecting the defence of common law qualified privilege if, contrary to his principal finding, the matters complained of were only downloaded and viewed by a limited class of persons with an interest in a limited subject matter; that is, assuming there was a reciprocity of interest, or a "community of interest" in what is conveyed: Papaconstantinos v Holmes 'A Court at [8].
In support of this contention, Mr Stoltenberg submitted that his Honour erred in referring to Vakras v Cripps [2015] VSCA 193, where the Victorian Court of Appeal upheld a finding of excessive publication, because Mr Bolton put forward no evidence in the present case of the type in Vakras v Cripps to prove the extent of publication.
Vakras v Cripps involved two personal websites maintained by "two obscure and commercially unsuccessful artists": at [345(4)]. The evidence indicated a much lower readership than the Narri Leaks site: at [371]-[388]. The Victorian Court of Appeal found the publication to be excessive taking into account the evidence was: (a) the articles were placed on websites which were generally accessible on the internet; (b) the defendants knew that they could limit access to their sites, but took no steps in that regard; (c) the websites were specialist websites; (d) the websites were unlikely to have been directly accessed by persons other than artists or persons with an interest in the surrealist works of the two artists; (e) the accessibility of the articles by way of Google and Bing searches; (f) there was some evidence that the articles were accessed by persons other than artists; and (g) the trial judge's finding that it was highly likely that a large number of people had read the article was speculative and improbable: at [345].
Here, the finding of excessive publication was justified by the evidence that the Narri Leaks Facebook page was generally accessible on the internet; Mr Stoltenberg took no steps to limit access to the site; and the site was accessed by persons other than residents of Narrabri Shire Council. As his Honour found, the site was accessed by a readership of the Narri Leaks Facebook page that reflected its deliberate and successful attempts to garner views and hits "all over the Shire, [and]…over the country": Judgment at [212]. That finding was supported by the evidence of the admissions and documents evidencing the extent of publication.
(1) No requirement of reciprocity of interest
Unlike the position at common law, there is no requirement of reciprocity of interest for the statutory defence under s 30: Cush v Dillon at [11]; Roberts v Bass at [62]; Aktas v Westpac Banking Corporation Limited (2010) 241 CLR 79; [2010] HCA 25 at [14], fn 24. As counsel for Mr Bolton acknowledged, the finding by the primary judge that there was such a requirement was an error. However, the error was not material given that his Honour proceeded to address as a discrete issue whether Mr Stoltenberg's conduct was reasonable in the circumstances: Defamation Act, s 30(3).
(4) Failure to assess reasonableness of each publication individually
These two complaints are related.
As s 30(1) of the 2005 Act reproduces s 22(1) of the 1974 Act, it has been accepted that it is appropriate to have regard to the jurisprudence developed in that context: Cummings v Fairfax Digital Australia & New Zealand Pty Ltd (2018) 99 NSWLR 173; [2018] NSWCA 325 at [251] (McColl JA, Beazley P and Simpson AJA relevantly agreeing).
In Morgan v John Fairfax & Sons (No 2), Hunt AJA summarised a number of propositions at 387-388 in relation to the requirement of s 22(1)(c) of the 1974 Act that the conduct of the defendant in publishing the matter was reasonable in the circumstances:
(1) The conduct must have been reasonable in the circumstances to publish each imputation found to have been in fact conveyed by the matter complained of. The more serious the imputation conveyed, the greater the obligation upon the defendant to ensure that his conduct in relation to it was reasonable. Of course, if any other defence (such as truth or comment) has already been established in relation to any particular imputation found to have been so conveyed, it is unnecessary to consider the reasonableness of the defendant's conduct in relation to the publication of that particular imputation.
(2) If the defendant intended to convey any imputation in fact conveyed, he must (subject to the exceptional case discussed in Barbaro's case, and perhaps also that discussed in Collins v Ryan) have believed in the truth of that imputation.
(3) If the defendant did not intend to convey any particular imputation in fact conveyed, he must establish:
(a) that (subject to the same exceptions) he believed in the truth of each imputation which he did intend to convey; and
(b) that his conduct was nevertheless reasonable in the circumstances in relation to each imputation which he did not intend to convey but which was in fact conveyed.
If, for example, it were reasonably foreseeable that the matter complained of might convey the imputation which the jury finds was in fact conveyed, it will be relevant to the decision concerning s 22(1)(c) as to whether the defendant gave any consideration to the possibility that the matter complained of would be understood as conveying such an imputation, as will be his belief in the truth of that particular imputation and what steps he took to prevent the matter complained of being so understood: Evatt v John Fairfax & Sons Ltd at 13-14; Makim v John Fairfax & Sons Ltd (1990) 5 BR 196 at 209; see also Wright v Australian Broadcasting Commission at 712 (whether the defendant "knew whether he was likely to convey a misleading impression"); Austin v Mirror Newspapers Ltd (at 362) (Privy Council).
(4) The defendant must also establish:
(a that, before publishing the matter complained of, he exercised reasonable care to ensure that he got his conclusions right, (where appropriate) by making proper inquiries and checking on the accuracy of his sources;
(b) that his conclusion (whether statements of fact or expressions of opinion) followed logically, fairly and reasonably from the information which he had obtained;
(c) that the manner and extent of the publication did not exceed what was reasonably required in the circumstances; and
(d) that each imputation intended to be conveyed was relevant to the subject about which he is giving information to his readers.
The extent to which the inquiries referred to in par (4)(a) should have been made will depend upon the circumstances of the case, in particular the nature and the source of the information which the defendant has obtained, and whether the position, standing, character and opportunities of knowledge of the informant (as perceived by the defendant himself) are such as to make his belief in the truth of that information a reasonable one: cf South Suburban Co-operative Society Ltd v Orum [1937] 2 KB 690 at 700-701; White & Co v Credit Reform Association & Credit Index Ltd [1905] 1 KB 653 at 658, 660; see, also, Hansen v Border Morning Mail Pty Ltd (1987) 9 NSWLR 44 at 55-56. …
(6) Failure to contact the plaintiff prior to publication
Mr Stoltenberg submitted, with reference to Enders v Erbas & Associates Pty Limited [2014] NSWCA 70 at [83], that the primary judge erred in finding that the failure to contact Mr Bolton prior to publication was "independently fatal" to the statutory defence.
In Enders v Erbas, Tobias AJA (Ward and Leeming JJA agreeing) said at [83], with respect to the matters referred to in s 30(3):
[83] … Each of the matters in the so called "checklist" are matters which, when determining whether the conduct of the defendant to publish the matter complained of is reasonable, "may" be taken into account. The statute does not require that they must be taken into account and in any event they could only be taken into account where it was relevant to do so for the purpose of determining whether the conduct to the defendant was reasonable in the circumstances.
This statement does not assist Mr Stoltenberg. And, as counsel for Mr Stoltenberg properly accepted, the failure to contact Mr Bolton prior to publication was relevant to the reasonableness of the publication in the present case. Importantly, the evidence did not establish that the seeking or publication of a response by Mr Bolton was impracticable, or that it was unnecessary to give Mr Bolton an opportunity to respond, particularly to allegations of corruption and inappropriate conduct.
The observation by his Honour that Mr Stoltenberg's failure to contact Mr Bolton prior to publication as "independently fatal" to the statutory defence of qualified privilege, is to be read together with the immediately following paragraph at Judgment [229], which it is convenient to extract again:
[229] Whilst I accept that in cases that do not involve mass media publications, it is not necessarily fatal to a defence under s 30 for the defendant to speak to or contact the plaintiff or a representative of the plaintiff prior to publication, in all the circumstances here, Mr Stoltenberg has failed to prove that he acted reasonably. It is common ground that Mr Stoltenberg made no attempt to contact Mr Bolton. There is no basis in my view for concluding that Mr Stoltenberg is relieved from the usual obligations to check defamatory allegations because he was running a public Facebook page rather than a separate website. (Emphasis added.)
On a fair reading of his Honour's reasons he did not treat the failure to contact Mr Bolton prior to publication as determinative of the reasonableness of the publications. Rather, his Honour found that "in the circumstances here", being a reference to the findings at Judgment [226]-[228], Mr Stoltenberg had failed to prove that he acted reasonably. Mr Stoltenberg's complaint concerns the weight given to his failure to contact Mr Bolton prior to publication. No error has been demonstrated.
His Honour found that Mr Stoltenberg published each of the matters complained of: Judgment at [159].
His Honour rejected Mr Stoltenberg's submission, based on the particulars point, that the pleading identified a limited class of persons to whom Narri Leaks was published: Judgment at [206]. His Honour said at Judgment [207]-[209]:
[207] Mr Bolton's pleading asserted that each matter complained of was in fact downloaded and read in each of the states and territories of Australia. That averment was never further particularised and no application was made by Mr Stoltenberg for further and better particulars of that issue.
[208] The defence of qualified privilege here is based on Mr Stoltenberg's claim that the Narri Leaks Facebook page is "dedicated to dealing with issues of interest to persons within the Narrabri Shire". The defence relies on the claim that each of the readers of the Narri Leaks Facebook page was a resident of the Narrabri Shire and had a reciprocal interest in issues relating to the Narrabri Shire Council.
[209] A close scrutiny of the circumstances of this case and the facts revolving around the publication of Narri Leaks leads to the conclusion that Mr Stoltenberg has failed to establish that the readers of the Narri Leaks Facebook page were residents of the Narrabri Shire with a reciprocal interest in a limited subject matter, being financial issues relating to the Narrabri Shire Council and/or the appointment of General Managers to the Council.
In rejecting the defence of common law qualified privilege, his Honour gave the following reasons.
First, that Narri Leaks was downloaded and read by a much wider audience than those residents of the Narrabri Shire Council interested in the finances of the Council, and that an avowed, and successful, purpose of the site was to attract readers from far beyond the Narrabri area who did not share the identified interest: Judgment at [210]. In support of this finding, his Honour referred to the four matters identified above at [33].
Second, his Honour said that even if, contrary to his principal finding, the matters complained of were only downloaded and viewed by a limited class of persons within a limited subject matter, evidence of publication of the Narri Leaks Facebook page was evidence of excessive publication, giving the following reasons at Judgment [212]:
The readership of the Narri Leaks Facebook page reflected its deliberate and successful attempts to garner views and hits "all over the Shire, [and] …over the country". It follows, as the Victorian Court of Appeal found in Vakras v Cripps that publication of each of the matters complained of was not protected by qualified privilege.
Third, whilst his Honour accepted that the finances of the Narrabri Shire Council and the appointment of general managers was an important topic in the Narrabri area, he found that Mr Stoltenberg had no duty to attack Mr Bolton's reputation. Further, although the allegations of Mr Bolton acting corruptly and inappropriately may have been of general interest within the Narrabri community, his Honour found that Mr Stoltenberg failed to demonstrate the existence of a "special and reciprocal interest", referring to Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195: Judgment at [213].
Fourth, with respect to Mr Stoltenberg's fall-back case that the relevant interest group was all people, wherever situated, with an interest in local government, his Honour found that there was no basis for concluding that the posts were only downloaded and viewed by a limited class of persons with an interest in local government: Judgment at [214].
Having rejected the defence of common law qualified privilege, his Honour went on to find that Mr Bolton had not established malice: Judgment at [221].
In Brunswick v Harmer the Duke procured republication to his agent, who had purchased a back number containing the defamatory article and obtained another copy from the British Museum, seventeen years after its publication. As Lord Phillips MR remarked in Jameel at [22], the facts in Brunswick v Harmer are remarkable, whilst noting at [56]:
We do not believe that Brunswick v Harmer could today have survived an application to strike out for abuse of process. The Duke himself procured the republication to his agent of an article published many years before for the sole purpose of bringing legal proceedings that would not be met by a plea of limitation. If his agent read the article he is unlikely to have thought the Duke much, if any, the worse for it and, to the extent that he did, the Duke brought this on his own head. He acquired a technical cause of action but we would today condemn the entire exercise as an abuse of process.
Here, the effect of the unchallenged findings is that Mrs Bolton acted independently of Mr Bolton in downloading and reading material from the Narri Leaks web pages: see above at [80]. The present case is far removed from the facts in Brunswick v Harmer where republication was procured by an agent of the plaintiff for the purposes of proceedings. That Mrs Bolton thought she should have a record in case her husband wanted to do anything about the posts did not make the proceedings by Mr Bolton an abuse of process.
As to the submission that Mr Stoltenberg might have pleaded other defences, such as under s 33 of the Defamation Act, the short answer is that he did not plead this defence and he is bound by the conduct of his case.
Mr Stoltenberg did not challenge any of these findings other than the finding at Judgment [147]-[148] that the Facebook documents about "reach" were capable of demonstrating the number of people who had access to Narri Leaks posts and records the number of people who viewed each publication (ground 7). The question is whether his Honour was entitled to draw the inferences which he did from the Facebook business records.
In Capital Securities XV Pty Ltd v Calleja [2018] NSWCA 26, Leeming JA (Basten and Gleeson JJA agreeing) said at [91]
… s 183 of the Evidence Act authorises a court to draw reasonable inferences from the document itself as well as from other matters from which inferences may properly be drawn. That provision provides that where a question arises about the application of the Act to, inter alia, the operation of s 69 to a document, then the court may "draw any reasonable inferences" from the document as well as from other matters from which inferences may properly be drawn.
Here, s 183 permitted the drawing of "any reasonable inferences from" the document "if a question arises about the application of the Act in relation to [the] document". Given that ultimately there was no objection to the admissibility of the Facebook records, the question which arose from the application of the Act was the identification of any "previous representation made or recorded in the document in the course of, or for the purposes of, the business": Evidence Act, s 69(1)(b). In this regard, his Honour found that the Facebook activity logs provide cogent evidence of publication of each of the matters complained of, giving the following reasons at Judgment [152]-[155]:
[152] The Facebook activity logs were eventually tendered without objection. It was submitted that I should give those logs little if any weight because of the absence of expert evidence from Mr Bolton's camp about their meaning. I do not accept that submission. There is evidence, particularly admissions by Mr Stoltenberg himself, that the inference I would otherwise have drawn under s 183 of the Evidence Act about those records is correct. That inference is that each of the matters complained of was downloaded and read by numerous third parties. I have earlier rejected the attempt by Ms Rook and to a lesser extent by Ms Loder to explain or qualify the meaning of those records.
[153] The Facebook activity logs provide cogent evidence of publication of each of the matters complained of. I more comfortably draw that inference in the absence of Mr Stoltenberg being called to give evidence to explain or qualify that evidence. Mr Stoltenberg's evidence could not have assisted his case on this issue.
[154] Those business records establish the following:
(1) in respect of the first matter complained of, Facebook recorded a "reach" of 661 and "likes, comments and shares" of 83;
(2) in respect of the second and third matters complained of, Facebook recorded a "reach" of 797 and "likes, comments and shares" of 124;
(3) in respect of the fourth matter complained of, Facebook business records demonstrate over the relevant week 26 June to 3 July 2015 Narri Leaks having a "total reach" of 2414 and "total page likes" of 719 and 499 described as "people engaged";
(4) in respect of the fifth matter complained of, Facebook records show a "reach" of 1900 and "likes, comments and shares" of 157.
[155] This evidence in and of itself does not prove that a particular person downloaded and read each of the matters complained of, but it is cogent evidence forming part of a platform of facts from which an inference that material has been downloaded and read can properly be drawn.
In oral argument, Mr Stoltenberg submitted that the meaning of the word "reach" in the Facebook records "must be aspirational, and it is a calculation perhaps done by Facebook based on how many friends a person has". This submission may be put aside; counsel for Mr Stoltenberg acknowledged that there was no evidentiary basis for the submission.
Next Mr Stoltenberg drew attention to the difference between the Facebook records concerning the "reach" of the posts, and the number of "likes, comments and shares". Reference by way of example was made to the first matter complained of where the business records of Facebook established that by 20 January 2016 the post had a "reach" of 661 and that 83 "likes, comments and shares" had been added to the post: Judgment [37], [154]. This submission goes nowhere. It may be readily inferred that not all persons viewing a post on the Narri Leaks page will make a response by either clicking "like" or "share" or by adding a "comment" to the post. Those persons who did so are a sub-set of the larger number of persons who viewed the page.
The inference drawn by his Honour that in the context of a post, the "reach" of the post records the number of people Facebook has recorded as having viewed the post was reasonably open to be drawn from the Facebook business records and the other evidence of admissions by Mr Stoltenberg in answers to interrogatories and in his contemporaneous posts as to the "reach" of the Narri Leaks web pages.
It was further submitted that readers of the matters complained of who could reasonably have identified that the publications were about Mr Bolton by use of the term "Mayor" were more likely than not to have an interest in the workings of Narrabri Shire Council. The submission continued that the primary judge erred in failing to take into account the inter-relationship between the issues of identification and qualified privilege.
The joint judgment in Cush v Dillon emphasised at [18] the further requirement spoken of by Parke B in Toogood v Spyring (1834) 1 C M & R 181 at 193; 149 ER 1044 for statements to attract the qualified privilege:
If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.
In Papaconstantinos v Holmes 'A Court (2012) 249 CLR 534; [2012] HCA 53 at [8], French CJ, Crennan, Kiefel and Bell JJ spoke of the required interest to attract the defence of common law qualified privilege in the following terms:
[8] The defence of qualified privilege at common law has been held to require that both the maker and the recipient of a defamatory statement have an interest in what is conveyed. This is often referred to as a reciprocity of interest, although "community of interest" has been considered a more accurate term because it does not suggest as necessary a perfect correspondence of interest. The interest spoken of may also be founded in a duty to speak and to listen to what is conveyed. (Citations omitted.)
Turning to the specific complaints of Mr Stoltenberg.
It is not in dispute that the primary judge correctly stated, with reference to Morgan v John Fairfax and Sons Ltd (No 2), that the Court was obliged to assess the reasonableness of publishing each matter complained of individually: Judgment at [225].
Mr Stoltenberg contended that the primary judge erred in assessing the reasonableness of the publications because he failed to consider the "matter" published as opposed to the imputations; that is, his Honour did not assess the reasonableness of the publications by reference to the actual words published rather than the imputations found to be conveyed. I do not agree.
That his Honour considered the actual language of the matters published, can be seen from his finding that the language used in the relevant posts was excessive. That finding at Judgment [230] was in these terms:
I also find that the language used in the relevant posts was excessive and the publication itself lacked reasonableness. It is not reasonable to make the allegations of unlawful and/or corrupt conduct the subject of this case in a public Facebook page, open to the world, without seeking any comment from Mr Bolton first. In the absence of any evidence from Mr Stoltenberg I am not satisfied that he has discharged his onus of proving that his conduct was reasonable.
Mr Stoltenberg further submitted that his Honour failed to consider whether it was reasonable to convey those matters that Mr Stoltenberg did intend to convey, as established by the tendered answers to interrogatories, and erroneously focused on the imputations which were found to have been conveyed. This submission was directed to the first, second and third matters complained of.
As to these three matters, it is necessary to refer to the tendered answers to interrogatories, in which Mr Stoltenberg said that he "intended to convey that the crucial vacant job of General Manager ought to have been awarded on merit to the most capable and experienced candidate", and that his belief in relation to each such imputation was:
.. that the two previous times the position of General Manager had become vacant, it was not filled on merit. It was my understanding that the best applicant for the position of General Manager was not offered an interview, instead one with scant experience was appointed and the Plaintiff had sung her praises to me in a chance meeting in the main street of Narrabri a few days before Christmas 2013. I told the Plaintiff in a chance meeting that most of the constituents did not think that the best applicant had been appointed.
Contrary to Mr Stoltenberg's submission, his Honour had regard to the imputations that Mr Stoltenberg intended to convey. His Honour said at Judgment [226]:
I reject Mr Stoltenberg's submission that he has discharged his onus by proving that the imputations he did intend to convey were the subject of reasonable conduct on his part. There was no evidence as to whether Mr Stoltenberg took any steps to prevent the pleaded imputations from being conveyed or was otherwise acting reasonably in publishing any of the matters complained of.
His Honour's approach was consistent with the third proposition stated by Hunt AJA in Morgan v John Fairfax & Sons (No 2) at 387. Whilst his Honour implicitly accepted the reasonableness of the imputations which Mr Stoltenberg intended to convey, he found that Mr Stoltenberg failed to establish that his conduct was nevertheless reasonable in the circumstances in relation to each imputation which he did not intend to convey but which was in fact conveyed, for the reasons given at Judgment [226]-[233]. There was no error in that finding.