Late in December 2022, in a judgment heard in the District Court of New South Wales, Michael Finch, litigation partner at Rostron Carlyle Rojas Lawyers in Sydney, represented the plaintiff, Matthew Doak, in defamation proceedings against prominent rodeo personality, Joshua Birks. Gibson J awarded almost $300,000 in damages for harm to the reputation of Mr. Doak, as a result of Facebook posts made by Mr. Birks, and subsequent comments by third parties.
Background
Mr. Doak and Mr. Birks are both members of the rodeo community. Mr. Birks’ company, Doak Bucking Bulls Pty Ltd, provides miniature bulls for children participating in bull bucking. Earlier this year at a bull bucking competition, a child was thrown from a bull while competing on miniature bulls provided by the company. A few days later, the defendant posted a 7-second video of the child falling off the bull on Facebook alongside the caption, “Not my bull not my kid but I think the rest of you will understand why it’s been put up!!!! Feel free to send Matthew Doak a message and give him a peace [sic] of your mind. (But keep in mind) you can’t teach STUPID!!!!”. This post received 204 comments and 163 emoji responses. The publications were available to the defendant’s 1,959 Facebook friends for 81 days.
Law
Defamation requires that publications conveyed imputations to the ordinary reasonable reader that are defamatory in nature. The plaintiff must also establish that the publication caused, or is likely to cause, serious harm to the plaintiff’s reputation, that is, is the ordinary reasonable reader or right-thinking member of the community is likely to think less of the plaintiff as a result of the imputations conveyed by the defendant’s publications?
The decision in the 2021 High Court case of Fairfax Media Publications Pty Ltd v Dylan Voller; Nationwide News Pty Ltd v Dylan Voller; Australian News Channel Pty Ltd v Dylan Voller [2021] HCA 27; 95 ALJR 767; 392 ALR 540 (“Voller”) was integral to the outcome of the present case. In Voller, the High Court determined that social media account owners are considered as the publisher of comments of third parties, and therefore are legally responsible for any defamatory imputations conveyed by such comments. Accordingly, the matters complained of pertaining both to the post made by the defendant, Joshua Birks, as well as 13 comments made by third parties in response to his post.
Imputations
Imputations, or, the meaning conveyed by a publication, are key to any claim for defamation. It was pleaded that the defendant’s various publications implied that the plaintiff recklessly endangered, was indifferent to, and prioritised profit over the wellbeing of children participating in the rodeo. Furthermore, it was pleaded that the defendant’s publications conveyed the imputation that the plaintiff was more interested in his own ego than the welfare of children at the rodeo, and placed children at risk of being killed. It was further pleaded that the various publication imputed that the plaintiff bullies children, was recklessly indifferent to the mental well-being of the children, recklessly provided dangerous bulls, neglected the duty of care that he owes to children at the rodeo and that parents need to protect their children from the plaintiff.
Serious harm
In addition to general damage to the plaintiff’s business and personal reputation, it was pleaded that the defendant’s publications are likely to discourage potential and existing clients of the plaintiff from using his services, recommending his services, and causing a loss of profit to his business. Serious harm was also established by reason of the plaintiff’s treatment at the rodeo following the defendant’s publications. For example, a rodeo attendee told the plaintiff not to “go killing any kids this weekend”. Another attendee asked Mr. Doak “what kid killers did you bring this weekend?” Further, as a result of the harm to his reputation caused by the publications, the plaintiff was forced to move his business activities to eastern Queensland, a further 3-hour journey.
The serious harm suffered by the plaintiff was multiplied by the “grapevine effect” which recognises the effect of gossip or “word-of-mouth” that is likely to occur in cases of defamation. In the present circumstances, the grapevine effect was particularly pertinent as the rodeo is a relatively small community of which the defendant is a notable member. By reason of his status, the defendant’s words hold considerable weight in the eyes of the community, thereby multiplying the harm suffered by the plaintiff as a result of the defendant’s publication.
Conclusion
In light of the post itself and the context that it was posted, each of the pleaded imputations was found to be conveyed by the defendant’s publications. The imputations were, in fact, defamatory. Serious harm by way of business loss was self-evident.
Damages
The plaintiff was awarded $200,000 in general damages.
Aggravated damages are invoked where a plaintiff suffers heightened distress due to the defendant’s conduct. These damages typically reflect a greater loss than that which is actually suffered by the plaintiff in tangible terms. A subsequent post by the defendant justified an award for aggravated damages in the sum of $50,000.
Special damages are awarded in relation to direct loss suffered by the plaintiff that is capable of precise calculation. A financial report prepared by the accountant for the plaintiff’s company reveals the financial losses suffered by the plaintiff’s company since the defendant’s publication. By reason of this, a sum of $24,000 by way of special damages was awarded.
After appropriate adjustments were made for interest, the plaintiff was awarded a total of $283,358.79.
Have you been the subject of negative public publications and want to learn more about your rights? Contact our defamation team today at [email protected] to discuss your matter further.
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