offline cases 2

This page highlights further offline defamation cases in Australia, the UK and other jurisdictions.

It covers -

• Safra and Amex - big money takes on corporate misbehaviour?
• Carson, Schofield and the "albino walrus" - the perils of criticism
• McLibel and Gunns - a case of "don't feed the beast"?
• Aldington, Tolstoy and Watts - justice or persecution?
• Ettinghausen and HQ - reputation and the scale of damages in Australia
• Berlusconi, Haider, Singapore and Turkey - 'talking truth to power' or defaming the state?
• Theophanous, Stephens and Lange - politics, free speech and bounding comment on the public and private lives of celebrities
• Ellis, Costello and Abbott -
• O'Shane

Readers of this site should conduct appropriate research before making their own judgements about circumstances, claims and counter-claims.

     Safra and Amex

Reclusive financier Edmond Safra (1932-1999) built the international Trade Development Bank, which he sold to American Express in 1983 but managed until 1985. He then began to build a new financial empire. Safra resigned from the Amex board and in 1989 accused the group of leading a smear campaign against him.

His proposed defamation action against a Fortune 500 corporation is an illustration that libel is not restricted to crazies or individuals ... and that it is useful to have the funds to take on the big end of town.

American Express admitted in 1989 to spreading false information, publicly apologized to Safra and paid US$8 million to his preferred charities. Safra subsequently died mysteriously in a fire in Monaco after selling another bank for US$3 billion.

     Carson, Schofield and the 'albino walrus'

An Australian jury in the 1993 Carson v John Fairfax defamation case awarded the plaintiff $200,000 in general damages and $400,000 in aggravated damages for libel contained in two newspaper articles.

The defamation imputed that Carson, a partner in a law firm, had sought to persuade witnesses to alter testimony, influence the Legal Aid Commission and pervert the course of justice. The NSW Court of Appeal set aside the award as excessive, ordering a new trial on the question of damages and eliciting an appeal to the High Court.

That appeal was dismissed, with the publisher noting that the scale of damages was on the order of damages in recent verdicts in industrial injury cases. The High Court referred to the need to ensure a "rational relationship between the scale of values applied in defamation and personal injury cases" in commenting that damages in defamation cases were vindication of reputation, consolation for personal distress and hurt and reparation for the harm done to reputation.

That advice was highlighted by the judge during the subsequent retrial, who alerted the jury to difficulties in using personal injury payments as a benchmark. The jury awarded Carson damages of some $1.3 million.

Some idea of the perils of criticism is provided by the experience of arts and food critic Leo Schofield. He was sued by an Australian restaurant in 1984 after a tough restaurant review in the Sydney Morning Herald featured the comment that he had been served a lobster that resembled "albino walrus". The publisher paid out $100,000. In 2004 he lamented of the National Museum in Canberra that

It was and remains an unmitigated disaster, an obscenely extravagant monument to architectural ego, faddishness, misguided political correctness, parochial vanities, compromise and technomania. Visiting is a dispiriting business. Finding anything to like about it is almost impossible.

That is of course rather mild compared to some of the brickbats thrown at masters such as Gropius, Mackintosh, Le Corbusier, Lutyens or Seidler.

The latter famously sued Patrick Cook for defamation over a 1982 cartoon in The National Times, with the jury finding that although the cartoon was defamatory, a defence of fair comment applied as the cartoon was an expression of opinion rather than fact and an opinion which an honest man might have held.

Schofield contemporary A A Gill notoriously savaged a London restaurant in 2002 by asking "Why is there never a Palestinian suicide bomber when you need one?" in a review that featured the claim

My chickpea soup was like sucking wet sand, the Blonde's bourride was an accident involving a hair-dryer and an aquarium, the flat chicken supreme was a battered hen, the ham was sweaty and curling, the wine (I'm told) was having a sex change to vinegar, and the service was resting while its agent placed the treatment/novel/play.

     McLibel and Gunns

In 1990 the McDonald's fast food chain served libel writs on five UK activists over a What's Wrong With McDonald's? leaflet, requesting them to retract allegations made in the leaflet and or go to court. Three of the five apologised; Helen Steel and Dave Morris proceeded to defend themselves in what became the longest English trial since the Tichborne case.

The 1997 win for McDonald's in the 'McLibel' case was arguably a pyrrhic victory. McDonald's was awarded £60,000 pounds damages, which the defendants refused to pay. They subsequently took the UK Government to the European Court of Human Rights to "defend the public's right to criticise multinationals", claiming that English libel law was oppressive.

Media critic Marita Franklin somewhat impatiently commented that

what terrible truths emerged about McDonalds from this litigation?  Not very many. Of the seven imputations in the pamphlet, the defence of truth failed for five, and the matters the defendants were able to prove were true were not exactly earth-shattering.

We learnt that hamburgers, like beer and heroin, are not very nutritious, that forests are cut down to make fast food as well as legal documents, and that advertising is designed to lure children into wanting to visit McDonalds (but not, thankfully, into legal offices). ...

McLibel shows how a determined litigant can hijack the court's procedure to turn a straightforward case into a major 'bunfight'. The defendants' decision to plead truth and string the matter out as long as possible was a clever tactic, but that is what it was - a tactic. It's a lot of fun for the defendants, but while they are having their day (or, rather, their two and a half years) in court, court time and facilities are tied up in an unsavoury battle over Ronald McDonald. Has that achieved anything, except to give other, less scrupulous, litigants good ideas?

McLibel has received attention as an instance of SLAPP, with some observers commenting that however tempting it would have been better for McDonalds not to "feed the beast" with publicity.

In Australia logging giant Gunns is suing 20 environmental activists (including Tasmanian Greens Senator Bob Brown) and organisations for $6.3 million, claiming disruption of operations and vilification of the company to overseas customers and local shareholders. The Gunns writ seeks $1.1 million for general damages (for quantifiable loss) and $5.2 million in aggravated and exemplary damages.

     Aldington, Macmillan and Tolstoy

Writer Nikolai Tolstoy claimed in The Minister & The Massacres that UK peer Lord Aldington (1914-2000) was a war criminal because of his role as a British army officer in the forced repatriation of some 70,000 people to Yugoslavia after World War II. Aldington's contemporary and former Prime Minister Harold Macmillan was also criticised. Aldington sued over a leaflet by disgruntled property developer Nigel Watts was circulated among politicians, Aldington's friends and the media. Tolstoy had been involved with the leaflet and insisted on being sued as well.

Aldington won a record £1.5m damages and £500,000 costs in his 1989 libel action against Tolstoy. However, the author made 15 appeals to courts in Britain and Europe, gaining a ruling by the European Court of Human Rights that the size of the award violated his right to freedom of expression. Watts was jailed for 18 months in 1995 after repeating the war criminal claim in a new leaflet.

     Ettinghausen

Rugby league player Andrew Ettinghausen sued HQ magazine for imputing he'd allowed his genitals to be photographed while in the shower. He was awarded some $350,000 in compensatory damages by a NSW jury in 1991. The court found that the photograph led him to be ridiculed because it showed his genitals to readers of a magazine with wide readership, lowering the public's estimation of him by implying he had authorised the taking and publication of the photograph.

Consistent with comments in the Carson case, critics of the judgement contrasted reputation and industrial accidents, commenting that a worker might receive smaller compensation for losing those parts of his body. In 1993 the NSW Court of Appeal held that the jury award was excessive. Justice Kirby commented that

It is simply impossible to suggest that compensation for harm done to the reputation of Mr Ettinghausen required or permitted general damages greater in magnitude than those awarded to persons suffering profound quadriplegia.

     Berlusconi, Haider, Singapore and Turkey

Italian media magnate and Prime Minister Silvio Berlusconi (profiled here) sued UK business publication The Economist over a 2001 article alleging that he had paid 23 billion lire into offshore bank accounts of former PM Bettino Craxi, presumably in connection with Craxi's 'Berlusconi Decree' that overturned restrictions on expansion of Berlusconi's broadcasting empire. The allegation reflected judicial findings in Italy.

Berlusconi's action elicited an Open Letter from the Economist and criticisms that the PM was chilling legitimate inquiry. Disagreement about responsible journalism, ethics and the significance of the media in 'talking truth to power' as a foundation for a strong civil society is apparent in controversy over defamation cases involving some heads of state.

It is sometimes claimed, for example, that former Singapore Prime Minister Lee Kuan Yew and the ruling People's Action Party have successfully used defamation action against political opponents and to stifle critical reporting by foreign media organisations such as the Far Eastern Economic Review, Asian Wall Street Journal, Time, Asiaweek and International Herald Tribune.

Legal codes in some states feature prohibitions on defaming national (rather than personal) honour, often embodied in the person of the head of state. Turkey's admission to the European Union is for example being complicated by prosecution of satirists who are incautious enough to depict Prime Minister Erdogan an animal (picturing him as a cat resulted in a US$3,500 fine for the cartoonist). Some of the wilder specimens of antisemitism such as the Anadoluda Vakit newspaper have, however, not faced prosecution. In Zimbabwe government prosecutions of journalists for criminal defamation are a matter of course.

In 2000 distinguished academics Anton Pelinka and Wolfgang Neugebauer were acquitted by a Austrian court over alleged criminal defamation of controversial politician Jorg Haider, who has gained attention for what critics characterise as chilling litigation to silence opponents.

In 1997 Gerhard Oberschlick for example reproduced a Haider speech that apparently argued that all soldiers in World War Two (including German troops) fought for peace and freedom and suggested that only those who had risked their lives in the war were entitled to exercise freedom of speech. Oberschlick commented that although Haider was not a Nazi he was an idiot. Haider took action for criminal defamation and for insult. The court, which had previously faced criticisms from Oberschlick and associates, held that 'idiot' was always disparaging and could never be used for objective criticism. Oberschlick was found guilty of having insulted Haider and ordered to pay a fine

Two years later Pelinka commented during a tv interview that

In his career, Haider has repeatedly made statements which amount to trivializing National Socialism. Once he described death camps as penal camps. On the whole, Haider is responsible for making certain National Socialist positions and certain National Socialist remarks more politically acceptable.

He was subsequently convicted of having defamed Haider's character and fined 60,000 Schillings plus court costs or lawyers' fees. Pelinka, like Oberschlick, appealed to the European Court of Human Rights in Strasbourg

     Theophanous, Stephens and Lange

The Australian High Court's judgements in Nationwide News v Wills (here) and in Australian Capital Television v Commonwealth (here) found that the federal constitution provided an implied freedom of political communication. In 1994 in Theophanous v Herald & Weekly Times Ltd and in Stephens v West Australian Newspapers Ltd the High Court considered the relationship between that freedom and state defamation law.

The decision in Theophanous created a new defence to defamation on the grounds of political discussion, allowing fair comment about politicians regarding their performance as MPs and comment on their suitability as parliamentary candidates for Parliament. The defence relates to statements regarding the public life of the politician and does not excuse defamatory statements that are malicious or is known to be false at the time of publication. Federal MP Andrew Theophanous was thus not exempt from criticisms, in a letter by opponent Bruce Ruxton that appeared in a Melbourne tabloid, regarding alleged bias or stupidity.

The decision in Stephens concerned criticisms of WA politician Tom Stephens and colleagues on a committee of the WA Legislative Council, with for example an overseas trip being slammed as "a mammoth junket". The High Court confirmed that the defense applied to state/territory politicians - rather than just their Federalcounterparts.

In 1997 the High Court handed down its decision in Lange v ABC, action by former New Zealand Prime Minister David Lange against national broadcaster the ABC over allegations on the Four Corners current affairs program. The decision has had a mixed reception but arguably consolidates the implied constitutional freedom of political communication.

The Court considered whether the NSW Defamation Act 1974 and common law

are reasonably appropriate and adapted to serving the legitimate end of protecting personal reputation without unnecessarily or unreasonably impairing the freedom of communication about government and political matters protected by the Constitution

It concluded that the community has a fundamental interest in receiving and discussing information on 'government and political matters' which - consistent with the Stephens judgement - should not be narrowly defined. In what has been criticised by some as "winding back the freedom" the Court indicated that there will be adequate protection for the reputation of those defamed in major publications "by requiring the publisher to prove reasonableness of conduct". The publication must not be "actuated by malice".

Reasonableness is dependent on the facts in each case, with the Court commenting that

As a general rule, a defendant's conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing the imputation to be true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendant's conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond.

The Court found that the NSW legislation did not unreasonably restrict communication on federal issues and that common law qualified privilege extended to matters concerning the United Nations, other countries and politics/government at the state/territory level and local government levels.

     Ellis, Costello, Abbott

Prominent federal politicians Peter Costello & Tony Abbott subsequently sued publisher Random House over Bob Ellis's memoir Goodbye Jerusalem, which featured gossip falsely claiming that they had been 'lured to the Liberal Party' by a sexual liaison. Negotiations about damages and an apology were apparently unsuccessful, with the dispute proceeding to a judgement by ACT Supreme Court Justice Higgins.

The Court, reflecting the differentiation between public and private lives, awarded the two politicians and their wives some $277,000. The publisher pulped copies retrieved from retailers, although many copies had been sold by that time and remain accessible through second-hand dealers.

     O'Shane

NSW magistrate Pat O'Shane was awarded $220,000 in damages in 2003 after being defamed in a Sydney Morning Herald article by lawyer Janet Albrechtsen that implied she was biased, incompetent and unfit for office because she allowed extreme views to affect her judgment.

NSW Supreme Court Justice Rex Smart commented that

The plaintiff's reputation was and is a very important part of her life. So also were her campaigns to improve the lot of Aborigines, to fight against police harassment of Aborigines and the misuse of police powers, to stop violence against women in all its forms and to redress the balance in what she regarded as a male-dominated society.

She was passionate and outspoken about the causes in which she believed. The advancement and success of the causes in which she believed were just as important to her as her reputation. Her reputation was important in the advancement of those causes

Although he did not accept that Ms O'Shane's hurt and injury was as great as she suggested (or that she could really fear being sacked as a result of the article)

I am of the view that [the] article did occasion hurt and injury to her feelings. The imputations of bias, knowingly acting contrary to law, incompetency, undermining the judicial system and allowing her extreme views to affect her judgment, have a major sting.

The SMH defended the article as fair comment on a matter of public interest, noting that it featured what might be characterised as a "sympathetic view" from University of NSW academic David Dixon, with analyst Richard Ackland subsequently commenting

One might have thought this was classically balanced behaviour from a newspaper. Here were two people writing about a controversial judicial figure, each expressing different opinions about her.

In the aftermath of the judgement O'Shane said she felt vindicated.

I hope it sends a message to the media generally to be responsible in the way that they comment or report. As far as I am aware there are no institutions of accountability to ensure that the media as a whole behaves in a responsible manner.

Albrechtsen was appointed to the board of the ABC in 2005.






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