Thunder Studios Inc (California) v Kazal

RARES J: 1 On 18 February 2022, I published my reasons for concluding that the applicants, Rodric David and Thunder Studios Inc (California), are entitled to substantial awards of damages and permanent injunctions in respect of the multiple, repeated and continuous publications of the two matters complained of and many false imputations by each respondent, Charif and Adam Kazal: Thunder Studios Inc (California) v Kazal (No 12) [2022] FCA 110 (the principal reasons). I will use the same abbreviations and defined terms in these reasons as in the principal reasons. 2 I found (at [365]): In my opinion, unless enjoined, both Charif and Adam are likely to continue making publications of the matters complained of, the Kazal website and the defamatory imputations that I have found, as well as the misleading and deceptive use of the bitlink on their Twitter accounts. Their persistent conduct over the seven years to the trial (except in Adam's case after the consent interlocutory injunctions and contempt proceeding) makes it plain beyond doubt that each will continue his irrational and vendetta-like behaviour the subject of these reasons, unless enjoined permanently from doing so. 3 I adjourned to today the formulation of orders to give effect to the principal reasons. The parties agreed on all of the orders except the following order that Mr David and Thunder sought (the contested order): 7. The First Respondent and Second Respondent shall: a. within 7 days of the making of these orders, take reasonable steps: i. to inform (A) the persons named in Schedule 1, and (B) the publishers, operators and/or owners of the websites, search engines and other platforms identified in Schedule 1, and (C) any other persons to whom matter consisting of or incorporating or linking to the matters complained of and/or the imputations identified in Order 5 has been made available either by the Respondents or with the knowledge of the Respondents, that the matters complained of and/or the imputations identified in Order 5 are defamatory of the Applicants and are the subject of permanent injunctions; and ii. to require that they remove that material (including from cached memory), and any link to such material, from any such website, search engine or platform; and b. upon request of the Applicants, provide copies of such communications made in performance on their obligations under (a) (i) and (ii) above, within 7 days of such request(s) by the Applicants. 4 The evidence of the applicants' solicitor, Walter MacCallum, establishes that as of yesterday press releases published by Charif are still online on SB Wire, that made statements such as: • This followed the exposure of truth about Rodric David's unethical business practices and fraudulent corporate behaviour as detailed by the Court of The Grand Cayman Islands • Charif Kazal now has a website platform to bring to the fore actual incidents and the excruciating details of one of Australia's major corporate crimes. (emphasis added) 5 Similarly, Mr MacCallum found yesterday online on ReleaseWire's website (to which I referred to in [188] of the principal reasons) numerous postings attributing the Kazal website as the source, including the following under the headlines italicised below: Kazal Family's Website Reveals How the Mercenary Journalist, Linton Besser, Aided and Abetted Rodric David. Kazal Family Website Reveals, Linton Besser Tried Best to Put Down the Respect of Kazal's Family and Tony Kazal " … The corporate thief Rodric David and journalist Besser worked together to plan the strategies against Kazal. Kazal Family Now Revealing the Actual Story Behind the Slander Campaign of Sydney Morning Herald Against the Kazal Family. … The Kazal family has had to bear the brunt and inevitable repercussions of the malicious intentions of this supposed leading journalist and the corporate fraudster, Mr Rodric David. 6 In addition, I found that as at 1 September 2020 a Google search result of "Rodric David" displayed the Kazal Family Story Pinterest account with the caption "Another hopeless act by the corporate thief Rodric David" (at [252] of the principal reasons). 7 Mr McCallum's affidavit also showed that on 15 March 2022, Charif's and Adam's brother, Tony, or Tarek, Kazal, continued to maintain tweets with links to, or that repeat, the substance of the matters complained of and the defamatory imputations that I found were false that they conveyed. However, Charif's Twitter account appears to have been closed recently, I infer in response to my principal reasons and the anticipation of any injunctive relief that I might be minded to order. 8 In addition, the parties appear to have accepted that the Kazal Family Story website (the Kazal website) is no longer accessible online. However, I note that during the trial Mr MacCallum, was able to use a Google article on the Kazal website to access and play in Court YouTube videos (as I recorded in the principal reasons at [245]). 9 After I delivered my principal reasons, The Sydney Morning Herald reported on the outcome of the proceeding on 21 February 2022 in an article written by Kate McClymont. At 12:10 pm on 21 February 2022, Charif sent Ms McClymont the following text message to her mobile phone: Kate We are pursuing our rights through the Courts and will prevail as no one can make a wrong right!!! For once do your job properly Kate You aren't interested in the truth Rares judgment will be appealed! Rodric David fraudulent activities in black and white in the US!! KTC claim against David, Singh, Bullock and G&T for breach of constructive trust with fraudulent design is before the courts so since when does the victims become culprits?? David lost his strike out application to our claim before justice Kunc he's a proper party to answer KTC claim. Justice will prevail Charif

The parties' submissions 10 Mr David and Thunder sought originally, in the contested order, much wider relief against other persons, including news media, who were not mere republishers or, on the evidence before me, responsible for republications of the matters complained of or the imputations that I have found. There is no evidence that Charif or Adam can, or do, exercise any relevant influence on what those news outlets or others publish. It will be open to Mr David and Thunder to take whatever steps they choose to draw to those publishers' attention any matters that they think relevant based on findings in the principal reasons or the orders that are made today. They can pursue whatever remedies they may have against those publishers. 11 During the course of oral argument, Mr David and Thunder limited the websites, search engines, platforms and persons, that they had included originally in schedule 1 of the contested order that Charif and Adam should serve, to Google Inc, YouTube, Pinterest, SBWire, ReleaseWire, BizJournal (being the LA Biz website) and backstage (the seven platforms). They accepted this narrowing of their original claim on the basis that there was no relevant evidence of continued publication by more than the seven platforms above. 12 Charif and Adam argued that it is unnecessary to grant an injunction requiring them, first, to notify the seven platforms on which they posted, or to which they communicated, about the matters complained of or imputations that I found them to have conveyed, and, secondly, to require those platforms to remove that content and any link to it, including where it is cached. They contended that such an order was not reflective of the principal reasons. In particular they submitted that the requirement, in contested order 7(a)(ii), to take reasonable steps to require the seven platforms to remove the matters complained of or imputations from their websites, search engines or platforms, would place "an obligation of uncertain terms" upon them. 13 Charif and Adam argued that, for present purposes, having accepted that as a result of my reasons, they would be enjoined from republishing the matters complained of or the imputations I found to have been conveyed and that were false, an order in terms of the revised contested order 7 is unnecessary. They contended that, for example, in response to any request they made to take down publications, Google, as the publisher or operator of its website search engine could ask them to identify which particular URL or website the take down request related. They asserted that they may then find themselves in possible contempt if, having given Google an answer, it transpired that there were other URL websites that, through inadvertence or otherwise, they had failed to require it to take down.

Consideration 14 In Chau v Australian Broadcasting Corporation (No 3) (2021) 386 ALR 36 at 79-84 [173]-[194], I discussed the principles on which the Court will grant permanent injunctive relief in respect of the publication of defamatory matter including (at [178]-[179]) the review that Wigney J had made of some of the principles in Rush v Nationwide News Pty Ltd (No 9) [2019] FCA 1383 at [27]-[29], [44]-[46]. 15 I found that the matters complained of conveyed imputations that, first, Mr David is a corporate thief, secondly, he was so lacking in integrity that he paid the journalist, Linton Besser, to publish deliberately invented lies in The Sydney Morning Herald about the Kazal family and their business dealings and, thirdly, Mr David paid Mr Besser to smear the Kazal family in an attempt to cover up his own criminal conduct (see imputations 6(b), (d), (f) in the landing page ([52], [69], [72] of the principal reasons) and the similar imputations in the Intro article (see [89]-[92])). In my opinion, the continuing availability of that material online at present amounts to a substantive republication of some of the imputations that I found were conveyed and of parts of the matters complained of, albeit that the Kazal website itself is presently inaccessible. 16 In the past, each of Charif and Adam has been able to cause online publishers to take down material that he posted that contained the matters complained of and or the imputations that I found were conveyed. I gave one example of this occurring in relation to the YouTube video that Mr MacCallum played in Court during the trial as recorded in my principal reasons at [244]-[247]. I infer that each of Charif and Adam has a significant degree of control or influence over how much of what he has previously posted or published online can remain accessible there. Mr MacCallum's evidence demonstrates that since the publication of my principal reasons, Charif's Twitter account has been closed. Adam's Twitter account was closed after he was charged or found guilty of the contempts of court to which I referred to in my principal reasons (at [9]-[12]). 17 I found in my principal reasons that the conduct of each of Charif and Adam since 2013 and up to the trial resembled a concerted, continuous campaign by him to vilify and denigrate Mr David and Thunder that was conducted as a vendetta (at [332]). I also found that their campaign was calculated (in Adam's case until he obeyed the injunctions in late November 2016) and thereafter by Charif, to drive online traffic to the Kazal website, and hence to the landing page and the Intro article, while they remained online (at [344]). 18 It is common ground that the LA Biz journal and the backstage websites are those on which Charif made postings under the LA Biz and backstage articles (see [50], [179]-[182] of the principal reasons). Charif's text of 21 February 2022 reaffirms that he will continue, unless enjoined, to assert falsehoods of and concerning Mr David and Thunder as appears in what he texted to Ms McClymont: Rodric David fraudulent activities in black and white in the US!! 19 I infer that is a reference to the decision of the Ninth Circuit Court of Appeals in Thunder Studios Inc v Kazal 13 F. 4th 736 (2021), (see [273]-[276] of the principal reasons) that held that under the first amendment to the Constitution of the United States, the activities in which Adam engaged in at Los Angeles in late October and early November 2016 were not actionable in that country. 20 The power to grant permanent injunctions in defamation matters should be exercised where there is a real risk of continuing and or further republication and that such republication would cause harm or damage to a claimant: Chau 386 ALR at 79-84 [173]-[194]. Here, the conduct of Charif and Adam leaves no question that such a risk exists as evidenced by the fact that it has materialised over years. Charif and Adam accept that, so long as my findings that they should be enjoined from further publishing the matters complained of and the imputations that I have found remain in place, they will be prevented from making any further publications of the matters complained of and the imputations that I found were conveyed. However, they contend that those injunctions in orders 5 and 6 that I will make today, comprise all the relief that, based on my findings, Mr David and Thunder should receive. 21 There is utility in making an order in a modified form of the contested order. That is because the many publications and postings that Charif and Adam have caused to be made online formed part of a vendetta-like campaign that extended over more than seven years. Those multiple publications and postings, on the evidence before me, formed part of a professionally supported activity to disseminate that material so as to generate search engine optimisation results that would increase the range of publication. This activity was calculated to draw attention to the matters complained of and the imputations and, in many instances, repeated, substantively, parts of the matters complained of that conveyed one or more of the imputations that I found were conveyed (see [206] of the principal reasons). 22 In my opinion, in order to make the injunctions in orders 5 and 6 more effectual, Charif and Adam should be required to take reasonable steps to draw to the attention and require, to take down off the internet so far as they are able, the seven platforms through which they sought to post online and republish the matters complained of and the imputations they conveyed.

Apportionment of damages 23 In my principal reasons, I found that each of Mr David (at [352] and [353]) and Thunder (at [362] and [363]) was entitled to damages and interest against Charif and Adam. 24 In my opinion, Mr David's awards of $400,000 against Charif and $600,000 against Adam included a substantial component of joint and several liability, as did Thunder's awards of $50,000 against Charif and $75,000 against Adam. It is difficult to disaggregate with precision the damage that each of Charif and Adam caused separately and not jointly. In all of the circumstances, I consider that Charif and Adam should be held jointly and severally liable for $350,000 of the awards in favour of Mr David and $45,000 of the awards in favour of Thunder, with a similar proportion of pre-judgment interest in each case.

Conclusion 25 I will make the following order rather than the contested order: 7. The First Respondent and Second Respondent: (a) take reasonable steps within 7 days of the making of these orders: (i) to inform each of the following persons being publishers and/or controllers of each of the following online websites, search engines or persons platforms that the matters complained of and or the imputations identified in Order 5 are defamatory of the Applicants and are the subject of permanent injunctions, namely: 1) Google Inc; 2) Youtube; 3) Pinterest; 4) www.sbwire.com; 5) www.connect.releasewire.com; 6) www.bizjournals.com; 7) www.backstage.com; and (ii) require such person or publisher to remove that material (including from cached memory), and any link to such material, from any such website, search engine or platform; and (b) upon reasonable request of the Applicants, provide copies of such communications made in performance on their obligations under order 7(a)(i) and (ii), within 7 days of such request(s) by the Applicants. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares.