The Daily Mail has been successful in appealing an earlier decision of Justice Bromwich, in the Federal Court case of Dailymail.com Australia Pty Ltd v Erin Molan [2023] FCAFC 26. The appeal follows the earlier judgment in Molan v Dailymail.com Australia Pty Ltd [2022] FCA 1004, where the famed television Erin Molan was initially successful in a claim for defamation against the Daily Mail for calling her, amongst other things, a racist. Ms. Molan was awarded $150,000 in damages after Justice Bromwich determined that the most serious imputation, that Ms Molan was a racist, did not carry. The result of the appeal is that the matter will now be retried before the Court.
The publications in question were an article published on 5 June 2020 on the Dailymail.com.au website, and two separate tweets published on 5 June 2020 and 6 June 2020 by the Daily Mail on Twitter. The article and the tweets made a number of claims about words that were spoken by Erin Molan during an episode of the Continuous Call Team program on the Sydney radio show 2GB.
Following the publication of the article and tweets, Ms. Molan then commenced proceedings against the Daily Mail, alleging that the publication of the article and the tweets defamed her, in that they implied that she is disrespectful in that she deliberately mocks the names of Pacific Islanders, that she lied, that she had refused to apologise for her behaviour and that she is racist, amongst other defamatory meanings (or, more precisely, imputations). Ms Molan’s strong claim is that she should not be characterised as such.
In response to the allegations made by Ms Molan, the Daily Mail denied that the defamatory or imputed meanings arose from the article or the tweets and that if they did, those meanings were substantially true, amongst other things. The Daily Mail sought to rely upon three defences, namely:
- The defence of justification (the defence of truth);
- The defence of contextual truth; and
- The defence of honest opinion.
The Daily Mail was not successful in these defences at first instance and appealed upon the grounds of there being an error in law in the judgment upon the Court’s determination of the defence of contextual truth, amongst other things.
Defence of contextual truth under the Defamation Act 2005 (NSW)
In its defence, the Daily Mail relied upon the defence of contextual truth under section 26 of the Defamation Act 2005 (NSW). This defence is also available under the common law, but this case only considered it in relation to the defence under the Defamation Act 2005 (NSW).
The contextual truth defence allows a defendant to ‘plead’ and thereby argue that even if some of the statements made in a publication, such as an article or the tweets were untrue, the publication gives rise to other defamatory meanings (imputations) which are substantially true and which do no further harm to Ms Molan’s reputation than those which were untrue.
It is an essential requirement when pleading and seeking to rely upon a defence of contextual truth to plead, that is, to put the plaintiff on notice, of the other defamatory meanings which the defendant seeks to prove are substantially true and do no further harm to the plaintiff’s reputation than those defamatory meanings which the plaintiff claims have damaged his or her reputation. The defamatory meanings relied upon with respect to a defence of contextual truth must differ in substance (that is, they cannot simply be the removal or a word, or a rewording of the sentence) – they must, in essence, give rise to a different meaning which does not cause any greater harm than the untrue meanings complained of by the plaintiff.
The primary judge in the case found that the defence of contextual truth was made out in relation to one of the imputations complained of by Ms Molan. However, the judge did not consider whether or not various other contextual imputations were different in substance because he had found that the Daily Mail had not proved those contextual imputations to be substantially true.
The primary judge’s findings in relation to the contextual imputations were that the Dailymail had failed to prove the substantial truth of the first contextual imputation and that the second contextual imputation, which was relevant that ” Ms Molan during the Continuous Call Team program on 2GB radio, engaged in conduct that was likely to offended persons because of their race or ethnic origin” did differ in substance and was made out.
Appeal to the Full Federal Court
The Daily Mail appealed, with the consent of Ms Molan, the decision of the primary judge to the Full Federal Court. The parties agreed that the learned Judge had erred in law in relation to various aspects of the case of Molan v Dailymail.com Australia Pty Ltd [2022] FCA 1004. In particular, it was agreed that some of the imputations complained of by Ms. Molan were not carried (that is, they did not arise from the article and/or the tweets as the case may be), that two of the contextual imputations were different in substance and were carried by the first matter complained of by Ms. Molan, and that the defence of honest opinion was not made out.
The Full Court did not go into depth in relation to the reasons for the appeal, on the basis that the appeal was made out and the terms of the findings sought by the parties were agreed upon. The Full Court went on to congratulate the parties on their approach to the appeal, which was highly pragmatic and sensible. As a result of the appeal, the matter will now be retried.
The case of Dailymail.com Australia Pty Ltd v Erin Molan [2023] FCAFC 26 provides a useful illustration of the defence of contextual truth under the Defamation Act 2005 (NSW). The case also highlights the importance of careful analysis of imputations in defamation cases. The Full Court’s decision to order a retrial shows that the context and circumstances of a publication can have a significant impact on issues relating to imputations and the strengths of a defence to a claim in defamation.
The law of defamation generally, and especially the defence of contextual truth is highly complex and requires an in-depth knowledge of the technicalities of the law of defamation. Rostron Carlyle Rojas Lawyers have a dedicated defamation legal team ready to assist you. If you have been defamed, have been served a concerns notice, or are considering publishing material that may be harmful to another person, contact us today by email at [email protected] or by phone at 02 9307 8900.
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