District Court New South Wales Medium Neutral Citation: Geyer v Ghosn [2020] NSWDC 744 Hearing dates: 9-13 and 20 November 2020 Date of orders: 09 December 2020 Decision date: 09 December 2020 Jurisdiction: Civil Before: Gibson DCJ Decision: Orders (1) Judgment for the plaintiff for $125,000. (2) Costs reserved, with liberty to apply in relation to both interest and costs. (3) Exhibits retained until further order. Catchwords: Tort – defamation – assessment of damages Legislation Cited: Defamation Act 2005 (NSW) ss 14, 34, 35 Evidence Act 1995 (NSW) s 63 Uniform Civil Procedure Rules 2005 r 28.2 Cases Cited: Ainsworth v Burden (2003) 56 NSWLR 621 Aldridge v Johnston [2020] SASFC 31 Barrow v Bolt [2013] VSC 226 Bauer Media Pty Ltd v Wilson (No 2) (2018) 56 VR 674 Born Brands Pty Ltd v Nine Network Australia Pty Ltd (No 4) [2013] NSWSC 1649 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; 13 ALR 577 Clift v Timms [1997] QCA 61 Crampton v Nugawela (1997) 41 NSWLR 176 David Syme & Co v Mather [1977] VR 516 Dingle v Associated Newspapers Ltd (1964) AC 371; [1962] 3 WLR 229 Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 115 French v Fraser [2015] NSWSC 1807 Gayed v Abdelmalek [2020] VCC 1814 KSMC Holdings t/as Hubba Bubba Childcare on Haig v Bowden [2020] NSWCA 274 Mallick v McGeown [2008] NSWCA 230 Mickle v Farley [2013] NSWDC Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 Mohareb v Jankulovski [2014] NSWSC 767 Mohareb v Kelso [2020] NSWCA 105 Moran v Schwartz Publishing Pty Ltd (No 3) [2015] WASC 215 Nazerali v Mitchell [2016] BCSC 2424 Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 Rothe v Scott [2016] NSWDC 160 Sleeman v Nationwide News Pty Ltd [2004] NSWSC 954 Snedden v Nationwide News Pty Limited [2009] NSWSC 1446 Snedden v Nationwide News Pty Limited [2010] NSWCA 98 Snedden v Nationwide News Pty Limited (No 2) [2010] NSWCA 117 Snedden v Republic of Croatia [2007] FCA 1902 Wagner v Nine Network Australia Ltd [2019] QSC 284; [2020] QCA 221 Webster v Brewer (No 3) [2020] FCA 1343 XX v Nationwide News Pty Ltd [2010] NSWDC 147 Youssoupoff v MGM Pictures Pty Ltd (1934) 50 TLR 581 Texts Cited: Fleming, The Law of Torts, 1998 LBC Information Services Jim Griesemer, "Have we unleashed the monsters?", Digital Culturist, 7 March 2017 Practice Note DC (Civil) No.1 Tobin and Sexton (eds), Australian Defamation Law and Practice, looseleaf, service 90, vol 1. Category: Principal judgment Parties: Plaintiff: Montanna Maxlee Geyer Defendant: Fouad Ghosn Representation: Counsel: Plaintiff: Mr R Rasmussen Defendant: Mr J Cohen Solicitors: Plaintiff: Brydens Lawyers Defendant: Citilawyers File Number(s): 2019/128966 Judgment The plaintiff's claim for damages 1. The plaintiff commenced proceedings for defamation on 26 April 2019 for two Facebook posts published on 4 March 2019. The sole basis for defence was denial of defamatory meaning and of publication. 2. On Friday, 13 November 2020, a jury of four persons found that the defendant had published the first (but not the second) of the two posts and that the following imputations were conveyed and defamatory: 1. The plaintiff was intimately involved in the Tyrone May sex scandal; 2. The plaintiff is the girl in the Tyrone May sex video; 3. The plaintiff is a person who has been exposed to viewers as the woman filmed having sex with Tyrone May. 1. Judgment was entered conformably with the jury's answers to questions. The remaining issue for determination is a question of damages in relation to the first publication which gives rise to the three imputations held by the jury to have been conveyed. 2. The issue for determination is the quantum of damages for the first matter complained of, the contents of which (with the second photo blacked out) were as follows: The plaintiff 1. As the matter complained of makes clear, the plaintiff, although not named herself, is the daughter of a rugby league "great", Mark Geyer. Mr Geyer enjoyed an international career as well as playing for the Penrith Panthers Club and has, since his retirement from sport, held positions as a sports commentator in the mainstream media. The fact that the plaintiff is his daughter is just as important to the damages issues in these proceedings as it was to liability issues. 2. The plaintiff and her friends, like their contemporaries, use Facebook and Instagram on a daily basis to communicate and to share news about social activities. While their personal interactions were protected by privacy shields, the plaintiff's profile photograph and name were not. This gave the plaintiff's social media photo (and connection to her famous father) a much wider circulation, in terms of the number of persons who would recognise her from a photo, than would have been the case before social media. 3. Although the plaintiff's Facebook and social media activities were relatively modest in scope, her father's social media activities were, by reason of his standing as a rugby league "great" and his media role as a sports commentator, very extensive. Mr Mark Geyer regularly published photographs of his social, sporting and family activities (a number which included photographs of the plaintiff) on social media platforms. As a result, the plaintiff's identity as the daughter of Mark Geyer, as well as her face, would have been known to a not inconsiderable number of the 200,000 to 300,000 followers he had on platforms such as Facebook and Instagram, in addition to many other persons with an interest in rugby league. The defendant 1. Australians love their sport, especially rugby league, and there are hundreds, if not thousands, of Facebook pages exchanging gossip and photographs. Many of these pages had large followings. Sometimes the content was admiring and sometimes it was not; in the case of the latter, some (including the defendant's Facebook page, "NRL Memes") were anonymous, presumably to avoid liability for the material they published. The defendant's desire to remain anonymous was such that he denied even being the publisher of the NRL Memes page, despite publishing on that Facebook page, inter alia, the statement of claim served on him at his home two hours beforehand (although under the opprobrious epithet "FAKE NEWS"). 2. There is notoriously no filter or bar as to what can be published on pages such as NRL Memes, which may explain why persons such as Mr Michael Ippavitz, the page administrator and IT consultant for "NRL Sledging-Verbal Warfare", have to carry out social media-related duties which, according to the text messages he sent to the defendant, included having objectionable content taken down and pages closed. 3. Mr Ippavitz's duties caused him to focus on the defendant's page, "NRL Memes", as early as 2015. In 2015, as a result of the defendant's denials of his ownership of the page, Mr Ippavitz screenshot an admission signed "Fouad Ghosn" where the defendant boasted he "owned NRL Memes and I fucking created the page" (Exhibit C, page 2), a screenshot Mr Ippavitz posted back to the defendant on a later occasion when he attempted to deny it, as the Facebook Messenger posts attached to Exhibit C show. 4. The "NRL Memes" page was popular. By the time of publication of the matter complained of, NRL Memes had more than 300,000 likes and followers (Exhibit F, Exhibit G), probably because it featured content Mr Ippavitz categorised as "grubby" (Exhibit C, page 1). 5. Sex scandals involving footballers are not uncommon and, on 4 March 2019, a particularly colourful scandal involving a Mr Tyrone May was "engulfing the code", according to the Daily Telegraph on 6 March 2019 (Exhibit F). Mr May was, by coincidence, also a member of the Penrith Panthers club which Mr Mark Geyer had famously played for, and with which Mr Geyer still had close connections. The scandal involved the release, by Mr May, of a "sex tape" showing intimate acts onto social media, in circumstances where the women shown having sex with him claimed they had not consented to the public release of the tape. 6. Both the video and scandal had, in internet terms, gone "viral" because of their salacious and unsavoury content. This video is where the lower photo in the matter complained of comes from, whereas the top photograph in the matter complained of was copied from the plaintiff's Facebook profile picture at the time (T 70). 7. Then there is the text added by the defendant. What made these events "spicy" was the asserted involvement of the daughter of Penrith "great", Mark Geyer in a scandal involving Mr May, another Penrith player, hence the hint of sarcasm in the concluding words in the post: "Happy days at Penrith". 8. The contents of this post were completely false from beginning to end. However, that did not stop the post from going "viral", just like the video and the Tyrone May scandal. The defendant's post was liked and shared by multiple sites; another Facebook page, "Nrl Quality Memes", copied and shared it, adding the word "Wow" at the top (Exhibit B). (Although the plaintiff failed in her claim against the defendant as author of the Nrl Quality Memes Facebook page, the fact that the owner of this page copied the matter complained of still amounts to evidence of the "grapevine" effect of the publication for which the plaintiff is liable: Ainsworth v Burden (2003) 56 NSWLR 621 at [5]). The plaintiff's evidence 1. The rapidity with which social media posts are shared is demonstrated by the plaintiff's evidence, as she learned of the matter complained of being online within minutes of its posting. The plaintiff received a phone call from her best friend about it, at the same time as a Facebook message from someone she did not know, which attached the post. The plaintiff described what happened as follows: (T 71) "A. … I was in my bedroom, and my best friend rang me and said, "Have you seen what's been posted about you?" and I said, "No." And simultaneously, I received a message on Facebook, of someone that I wasn't friends with, that I didn't know, of a screenshot of this exact message, and below it, it said, "Is this you in the video?" Q. And so that's when you first saw this particular Facebook post. A. Correct. Q. And what was your reaction when you saw it? A. As - as soon as I saw it, I screamed. I literally screamed, from just pure shock, and I ran downstairs to my family, because I didn't know what was going on, and I was - I was devastated. I didn't know what to do. My family were confused, and - yep - I was just beside myself." 1. The plaintiff described herself as "completely shattered" and "broken" (T 71). She ran downstairs, crying, to find her family, clutching her phone. She showed the post on her phone to her parents, brother and sisters. They had been talking about the Tyrone May scandal, which was of particular interest to all of them by reason of the family's long-standing connections to the Penrith Panthers, and had just seen the defendant's post being shared onto her brother's Facebook page. 2. The plaintiff described her family's reaction as follows: (T 72) "A. I kind of just showed them my phone and they'd already been privy to what - so they'd already seen it - my brother had already seen it come through on his Facebook. And when - by the time I had run downstairs and shown them, they were kind of just at a loss as well. They didn't know what to do either. Yeah, it was - it was horrible." 1. The plaintiff's distress was increased when she looked at her social media pages on her phone and saw the following: (T 73-74) "A. My followers were going up. My follow requests, because my page is on private, going up by 50 and then 100, and then by the end of that night, I had over a thousand people requesting to follow me on Instagram. Q. And what about on your Facebook Messenger? A. Yep, I had Q. Did you notice anything? A. Yeah, so I - my Facebook and my Instagram are both on private, but on my Facebook page there was hundreds of people requesting to message me, just saying, "Oh, my God, you're the girl in the video," laughing at me, sending me the meme, requesting to be my friend on Facebook. Yeah, it was horrible." 1. The plaintiff described the impact on her family as follows: (T 74) "A. I was trying to, but I was so - I was having like a - an out of body experience kind of thing, like I didn't - I was registering what was happening but I couldn't really act on it, because I was just - everything was happening around me and I didn't know what to do. I didn't know what to say, because I had obviously never been in this position before. Q. Do you recall then what you did that night? A. We were all sitting in the lounge room the whole night, people calling my dad. My dad was calling people. My whole family were calling - I was kind of just sitting back, not doing much. I was - I was receiving calls of my friends and messages of support, but no, I didn't do - I didn't do anything that night. We just kind of sat all together in the lounge room." 1. The plaintiff's social media accounts were also filled with messages from friends, enquiring as to her welfare. She was too distraught to answer. She stopped looking at her phone messages and social media because it was too distressing. 2. The next day, the plaintiff was still very distressed. She went to work but was taken aside by her manager, who suggested she take the day off, as she was obviously tearful and in an upset state. When she returned the following day, she saw an article in a newspaper referring to these events and became upset. Her understanding manager told her to take the rest of the week off. 3. As the plaintiff gave this evidence, she was struggling not to cry. She told the court that for the following weeks and months she was reluctant to go out and spent a lot of time in her room. She had been planning to move out of home but felt the need to stay with her parents in the family home. When she did go out, she was afraid people were looking at her. She recalled one incident when a stranger asked if she was the girl in the video. 4. I do not propose to set this evidence out in more detail, as it would only repeat material that was obviously distressing for the plaintiff and that she was reluctant to talk about. She was only 22 years old when these events occurred. She had just started a new job and was thinking about moving out of the family home. In the witness box, she presented as a vulnerable girl who had been crushed by these events. She looked even more crushed when Mr Cohen put to her that she was exaggerating. I reject Mr Cohen's submissions that she was doing so. If anything, the plaintiff was minimising her evidence because of her reluctance to speak about how she felt. 5. I am satisfied that hurt to feelings is a very significant factor in the damages to be awarded. Mr Mark Geyer and Mr Logan Geyer 1. The plaintiff's father (Mark Geyer) and brother (Logan Geyer) both gave evidence about the plaintiff's distress that night as they were making enquiries on the plaintiff's behalf, to see if they could find out who had posted this false and defamatory material. Logan Geyer sent messages to NRL Memes and screenshot the following responses: (Exhibit G) 1. Mr Mark Geyer contacted friends in the media by telephone for advice about what to do (T 117) and checked his son's posts to NRL Memes (T 117-118), while his daughter was crying: "A. Crying. And that's - you know - I just tried to try and fix her up - I - I tried to help her as quick as I could. And then my son contacted the memes and said, "It's not my sister. Take it down." I actually sent a post out to say, as well, something about the same thing, "Does anyone know who this person is posting this about my daughter? Because it's not her." Q. When you say you "put a post out", is that what some people call a "shout" is it? A. It's a - it's a post on social media on - on Facebook to say that, well, "Can someone help me with a information?" And I got plenty of information. Q. And did you show that information to your son? A. No, he done his own - he was - he'd already done stuff before I'd even had a chance to do that. Q. You came to believe, because of the results of that shout, that Fouad Ghosn was the person responsible. Is that right or wrong? A. Correct." 1. In cross-examination, Mr Geyer confirmed: (T 123) "Q. Now, just in terms of the actual defendant, did you say that you looked his profile up - I don't recall - you said you looked his profile up on the net, is that right, or did you give that evidence? I don't recall that. A. No, I didn't. Q. Did you make any inquiries into the defendant? A. Well, everyone - everybody who responded to me said it was him." 1. Following Mr Geyer's inquiries with Mr Hadley, Mr Hadley named the defendant on Radio 2GB the following day (T 124). In addition, an article appeared in the Daily Telegraph stating that the plaintiff was not in any way involved in the sex tape scandal and was not the young woman portrayed in the video. 2. Both witnesses described the changes in the plaintiff's behaviour following these events. 3. Mr Geyer said that he "instantly" (T 119) noticed changes in the plaintiff's behaviour: "Q. What did you observe? A. She was just for a long - she's - to be honest, you know, she's - she's a bubbly, beautiful girl, and this - to have this written about you or posted about you cuts your knees from under you. And she was - she was morose. She was short. She's - you know, the bubbles have - the bubbles have disappeared straight away. Q. And did you notice whether she was spending more or less time at home? A. Well, a lot - a lot more home, a lot less time going out, a lot - a lot more time at home on - on her own watching Netflix and just being, you know, not - just not being her." 1. In cross-examination, Mr Cohen did not challenge Mr Geyer's description of his daughter's distress, but put to him: (T 121-122) "Q. Is it the case that when any of these scandals come up, they make the news. Is that right? These types of scandals, for example, the Tyrone May A. Yeah, yep. Q. they make the news? A. Yes. Q. In a sense, when rugby league is in the news, for good or for bad, it in a sense enhances people's awareness of it. Do you agree with that? A. Yes." 1. This line of questioning, in relation to Mr Geyer and other witnesses, is relied upon by Mr Cohen to argue that any publicity for rugby league is good publicity, and that the plaintiff and her witnesses were exaggerating when they claimed to be shocked and upset by the publication. 2. I do not accept this submission. I also note that Mr Logan Geyer was not challenged in his evidence that the plaintiff became very reclusive, spending a lot of time in bed watching television and being reluctant to go out (T 99). He said this changed behaviour continued over a considerable period. Like his father, he was an impressive and truthful witness. 3. Both Mr Geyer and Logan painted a vivid picture of a close and happy family plunged into a nightmare after the plaintiff screamed and came running down the stairs, distraught and in a panic (T 96). The steps that each of them took to discover the defendant's identity while at the same time trying to comfort the plaintiff were described in a frank and unexaggerated way. I accept their descriptions of the plaintiff's distress. Mr Michael Ippavitz 1. Mr Ippavitz provided a statement to the Court which is dated 9 January 2020 (Exhibit C). This was tendered under section 63 of the Evidence Act 1995 (NSW) as Mr Ippavitz died before the proceedings were heard. 2. Although his evidence related largely to the disputed issue of publication, Mr Ippavitz's statement also provides an insight into how persons who do not know the plaintiff personally would have reacted to the publication. He states in paragraphs 18 to 21: "18. In the early months of 2019, NRL Memes displayed images of a female engaged in a sexual act where by Miss Montanna Geyer was labelled as one of the main characters. 19. I do not know Montanna Geyer personally. I know what she looks like from following her father Mark Geyer on social media. 20. After viewing the images on NRL Memes Facebook page it convinced me that the video was Montanna Geyer. 21. I have since discovered that the female in the video was not Montanna Geyer but for a period of time the NRL Memes Facebook post had me believe that it was Montanna Geyer." 1. As to the extent of publication, Mr Ippavitz's statement also provides some revealing insights into the nature of NRL-related publications on social media, but also as to the place of NRL Memes in this underworld of sledging and verbal warfare. He sets out in the statement that he is one of the administrators and IT consultants on a rugby league Facebook page named "NRL Sledging-Verbal Warfare". He explains that his association with the defendant arose through his ownership of NRL Memes, and that "when grubby content would emerge on the [NRL Memes] Facebook page, I, along with others, would challenge Mr Ghosn about his content". As the defendant "continually denied being the owner of this site", he made a point of keeping a screenshot of the Facebook messenger text from the defendant (signed "Fouad Ghosn") dated 27 April 2015, in which he stated he had "owned NRL Memes since August 2012 and […] fucking created the page." The defendant would have known of the existence of this screenshot as one of his subsequent attempts to deny any connection with the NRL Memes resulted in Mr Ippavitz messaging a copy of the screenshot to the defendant under cover of the following message: "Here's you saying you own it, in this chat right here you dumb cunt". 1. Although only the messages by Mr Ippavitz are available for the period from 22 May 2015 onwards, their content illustrates the kind of "grubby" content published by the defendant which was coming to his attention in his role as administrator. A typical warning he gave the defendant reads: "The whole hacking of NRL memes, harassing people with your fake account. You've been outed mate. Everyone knows. Rebels are all whingeing about you too." 1. The relevance of this evidence, in terms of damages, is that it establishes the nature and content of the publication in which the matter complained of was published. The defendant was not a publisher of news content of any kind, but the owner of what Mr Ippavitz calls a "fake account" against which NRL Sledging-Verbal Warfare had to take action on a regular such as having content removed and issuing warnings. 2. The fact remains, however, that, thanks to the lack of content control, the defendant's posts achieved a mass publication level that was both instant and far-reaching. His ability to damage the reputation of the plaintiff was as significant as it was unexpected. In defamation actions, a Court may take into account that the matter complained of is an unexpected "bolt from the blue" (Sleeman v Nationwide News Pty Ltd [2004] NSWSC 954 at [118]). That is certainly the case here. The plaintiff's friends 1. The plaintiff called three friends, Jorgia Roe, Erin Johnstone and Taylah Smith, each of whom gave evidence about the distress the plaintiff suffered and also about the inquiries each of them received from family and friends who saw the matter complained of. 2. Ms Roe told the Court that the matter complained of came to her attention on the night in question, when her husband and father both showed her the Facebook post: (T 141) "A. I did see the meme. I - it was shown to me by my husband as well as my - my dad. So not - I didn't - it - it was on Facebook when they had shown it to me, but I wasn't - it wasn't directly on my Facebook. Q. And I think you said your dad showed it to you. Is that right? A. Yes, that's right. Q. When he showed it to you, did he say anything to you about it? A. He just said, "What - what's going on with Montanna?" Q. And your husband. Did he also show this thing to you? A. Yeah, and he said similar - said the - a similar thing, like, "Look at - what - what's happening with Montanna?" 1. Ms Roe also identified the second matter complained of (T 144), but I have disregarded that evidence. 2. Ms Roe told the Court that, although she knew the plaintiff and did not consider she was the woman portrayed in the second photograph, her husband told her that the post had been discussed by his friends. She described the change to the plaintiff's personality as follows: (T 146) "A. … She was a lot more - well, uncomfortable leaving the house. Like, I guess, having people assuming that it is Montanna in the video, it made her uncomfortable leaving the house. She wasn't really wanting to do much at the time of the - of that image being released." 1. Ms Roe also described the concerns the plaintiff had about the impact of the publication on her job: (T 146) "A. I know that at the time of the image being released, Montanna had - she would have - she was starting a new job, and she was concerned about how that meme would have an impact on her job. So she did have to discuss that with her boss, as well. So I know that that made her quite anxious." 1. In cross-examination, Mr Cohen put to the witness that the plaintiff was not particularly upset about this incident, which she denied. 2. Ms Johnston, a police officer who had been a friend of the plaintiff for 15 years, did not have a Facebook page, but was shown the Facebook entry by someone else. She immediately rang the plaintiff to say she had been shown this post and asked if the plaintiff had seen it yet. She said that the plaintiff burst into tears. 3. Ms Johnston also had conversations with her parents that night. Her parents had met the plaintiff and knew she was Mark Geyer's daughter. Her father told her that he had had people ask him if it was the plaintiff in the photos (T 156). Her mother told her that people at her workplace had asked if it was a plaintiff in the photos. 4. Another friend, Taylah Smith, gave evidence that friends sent her the post on social media, asking "Is this Montanna?" (T 162). As was the case with the other witnesses, she described the plaintiff before the publication as being happy outgoing and friendly, whereas after the publication, she became reserved, and was not as bubbly or enthusiastic. The plaintiff was worried what others would think of her and whether they would think she was the person in the video (T 163-164). 5. Mr Cohen put to both these witnesses that they were "not telling the truth" (T 164; T 168), or exaggerating, or both. Each denied it. I consider these witnesses to have given evidence without any dissimulation or dishonesty and I accept those denials. 6. I do not accept Mr Cohen's submissions that these witnesses' failure to keep text or social media messages from the night when the matter complained of was published indicates these are witnesses whose evidence should be treated with caution (T 164). In particular, I do not consider that Ms Johnston was somehow in breach of her obligations as a police officer in not doing so (T 159): "Q. All right, so you don't have that text. A. No. Q. Is that right? All right. And you're a police officer; is that right? A. I am. Q. And you didn't think it proper to save that text? A. I don't think that has anything to do with my duties, no. Q. Well, I'm - you weren't officially assigned to this case, or anything like that; I'm not suggesting A. No." 1. These witnesses painted a vivid picture of the level of distress the plaintiff showed, as well as the change in personality which occurred following publication. General Damages 1. The relevant principles for the assessment of damages for defamation are set out at paragraphs [20,001] – [20,030] in Tobin and Sexton (eds), Australian Defamation Law and Practice, looseleaf, service 90, vol 1. 2. The purposes of the award are for consolation for the distress suffered by the publication, reparation for harm to reputation and vindication. The purposes of an award of general damages for defamation are explained in Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at [32] by Mason CJ, Deane, Dawson and Gaudron JJ as follows: "32. As the appellant made no claim for particular economic loss as a result of either publication, the Court of Appeal ((33) (1991) 24 NSWLR, at p 298.) was right in concluding that the jury's verdicts could not be supported by reference to specific economic loss. Specific economic loss and exemplary or punitive damages aside, there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that "the amount of a verdict is the product of a mixture of inextricable considerations" ((34) Uren v. John Fairfax and Sons Pty. Ltd. (1966) 117 CLR, per Windeyer J at p 150.). The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant's personal and (if relevant) business reputation and vindication of the appellant's reputation ((35) Carson (1991) 24 NSWLR, at pp 296-299.). The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant ((36) Uren v. John Fairfax and Sons Pty. Ltd. (1966) 117 CLR, at p 150; Coyne (1991) 172 CLR, at p 216; John Fairfax and Sons v. Kelly (1987) 8 NSWLR 131, at p 142; McCarey v. Associated Newspapers Ltd. (No.2) (1965) 2 QB, at p 107.). Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant's reputation. "The gravity of the libel, the social standing of the parties and the availability of alternative remedies" are all relevant to assessing the quantum of damages necessary to vindicate the appellant ((37) Fleming, "The Law of Torts", 8th ed. (1992), p 595)." 1. In determining the amount of damages to be awarded, the Court must ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded: s 34 of the Defamation Act 2005 (NSW). 2. The maximum amount of damages that may be awarded for non-economic loss in the present case is that gazetted as from 26 June 2020, namely $421,000 (see s 35 of the Defamation Act 2005 (NSW)). 3. There is a debate in New South Wales as to how the provisions of the uniform legislation are to be translated into an appropriate sum, both in terms of the size of the award (KSMC Holdings t/as Hubba Bubba Childcare on Haig v Bowden [2020] NSWCA 274 at [292] – [295]) and as to whether the cap should be dispensed with if aggravated damages are awarded (cf Aldridge v Johnston [2020] SASFC 31; Bauer Media Pty Ltd v Wilson (No 2) (2018) 56 VR 674). As to the former, the matter complained of does not fall within the category of limited publications the subject of appellate concern. As to the latter, this position may be considered to be settled at appellate level (in Victoria, Queensland and South Australia) until such a time as the legislative reforms currently underway have been assented to. Accordingly, I need only note that, in New South Wales at least, this debate is ongoing. 4. What is missing from the debate, however, is guidance as to how damages should be assessed for publications outside the mainstream media. Most appellate courts take a "one size fits all" approach of considering the extent of publication as the key, with the result that damages for media publications tend to be assessed at a higher level than, for example, publications of a personal nature, although the hurt may be far more intense (compare KSMC Holdings t/as Hubba Bubba Childcare on Haig v Bowden at [292] – [295], with the approach taken to the email sued upon in French v Fraser [2015] NSWSC 1807). Additionally, the Federal Court has taken a dismissive approach to social media (Webster v Brewer (No 3) [2020] FCA 1343 at [59]), on the basis that such publications, especially if couched in sensational terms, are less likely to be regarded as honest or reliable; this is one of the arguments relied upon by the defendant in these proceedings. The plaintiff's submissions on damages 1. Mr Rasmussen notes that the matter complained of was published on a Facebook page which has more than 300,000 Facebook likes and followers. It achieved wide publicity, as the Tyrone May sex tape scandal had been a major topic of discussion in the media that day, and its contents were salacious. 2. The plaintiff's initial horror was compounded by the very large number of people who not only shared it but who contacted her on social media, such as the thousand people who contacted her on Instagram wanting to follow her. Although the matter complained of was taken down from the page, the fact that many readers shared copies on both Facebook and other social media/internet sites meant that these continued to be recycled. The grapevine effect is particularly strong in the present case. 3. Mr Rasmussen also submitted that there were substantial aggravating factors, including the extraordinary conduct of the defendant when asked to apologise, the increased hurt to feelings caused by the plaintiff's knowledge of the falsity of the imputations and the manner in which the defendant has conducted these proceedings. 4. Mr Rasmussen submitted that there was abundant evidence of the damage to the plaintiff's good reputation and the sum to be awarded must be sufficient to signal to the public that the plaintiff's reputation is properly vindicated. The median is $210,000, and the question is the degree to which the particular case is above or below this median. An appropriate guide is Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674, where an award of $350,000 (similarly made to a plaintiff who was not named and relied upon extrinsic facts) was upheld on appeal: Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 115. The defendant's submissions 1. Mr Cohen's brief submissions raise the following issues: 1. The imputations conveyed are not serious but, to use his words, "very slight". If anything, the plaintiff is portrayed as a victim. 2. The extent of publication was very limited in time. The matter complained of and the whole NRL Memes Facebook page were taken down shortly after publication. 3. Sharing of the original post by the defendant on the "Nrl Quality Memes" page and the exonerating material in the Telegraph shortly after publication should be taken into account in mitigation. 4. Hurt to feelings was minimal. Mr Cohen particularly asserts that it is "difficult to understand" why the plaintiff was so upset, as her friends knew it was not her and, in addition, she was portrayed as a victim. The plaintiff and her witnesses were exaggerating in their evidence. 5. The NRL Memes page was just a scandal-sharing page which no one would take seriously because everyone knows that the internet and social media are both full of false stories like this. (a) The seriousness of the imputations 1. The imputations, which the jury have found to be defamatory, must be viewed in the context of the matter complained of, namely that it was "spicy" that the plaintiff was involved, as she is the daughter of Penrith player Mark Geyer, also a Penrith player (hence the "happy days at Penrith" comment). The matter complained of does not portray the plaintiff as a victim of Mr May, but as someone who has added to the "spice" by reason of her intimate involvement in the scandal as Mark Geyer's daughter. 2. However, even if the plaintiff was portrayed as a victim, non-disparaging words of this kind may still be defamatory for the reasons explained in Mallick v McGeown [2008] NSWCA 230 at [78] – [84], citing Youssoupoff v MGM Pictures Pty Ltd (1934) 50 TLR 581 and the following passage from Fleming, The Law of Torts, 1998 LBC Information Services (at 582, footnotes omitted): "To say of a man that he is insane or of a woman that she has been raped does not arouse sentiments of animosity but rather sympathy and pity in the minds of decent people. Yet such assertions are defamatory because, without suggesting discreditable conduct, they impute to the plaintiff a condition calculated to diminish the respect and confidence in which he is held. A person's standing in the community, taking people as they are with their prejudices and conventional standards, is just as likely to be impaired by an attribution of misfortune as of contemptible conduct. In this matter, it is to shut one's eye to realities to indulge in nice distinctions." 1. The question of the degree of defamation involved is the issue. The conduct involved is, regrettably, not clearly encapsulated in the imputations pleaded, where it appears to be restricted to participating in the sex video. This is not conduct of the criminal kind attributed to Ms Pedavoli; it is conduct well below this in terms of seriousness, and this must be taken into account when assessing damages. (b) The extent of the publication was limited in time 1. There is little evidence of when and in what circumstances the matter complained of was removed from the NRL Memes Facebook page, and even less evidence about when and in what circumstances the NRL Memes page itself ceased publication. The defendant denied any involvement in either of these and gave no evidence of removal. 2. Mere removal of the original post and even of the Facebook page does not mean that all copies of the matter complained of disappear from the internet. To remove all trace of a publication from the internet it may be necessary to run programs of the kind described in XX v Nationwide News Pty Ltd [2010] NSWDC 147. Many social media and internet users remove posts themselves in the manner described by Ms Johnston (who regularly deleted text messages). I also accept that posts by NRL Memes on Facebook would become unavailable after the account was closed, for the reasons explained by Mr Ippavitz. 3. However, that does not mean that all the copies of the matter complained of have vanished from the internet, as Gleeson J in Webster v Brewer (No 3) [2020] FCA 1343 noted, setting out examples of these at [65] – [68]. This is because, in terms of permanency, publishing material online is not able to be effaced as easily as graffiti on a wall because, as the saying goes, the internet never forgets. 4. While I am satisfied that first the matter complained of and then the NRL Memes page were both removed in a matter of days, or perhaps longer, I am also satisfied that the contents of the matter complained of remained on the internet for some time thereafter. This is a factor relevant to take into account. (c) The mitigating impact of other publications 1. Mr Cohen's submissions fail in limine as there is no plea of mitigation. 2. The impact of other publications cannot be taken into account in any event: Dingle v Associated Newspapers Ltd (1964) AC 371; [1962] 3 WLR 229; Moran v Schwartz Publishing Pty Ltd (No 3) [2015] WASC 215 (unsuccessful attempt to rely upon 59 other publications). 3. As for the Nrl Quality Memes publication (Exhibit B), while the defendant may not have been the publisher, that post was clearly shared from the defendant's original post and, as such, is capable of amounting to evidence of the grapevine effect. (d) Hurt to feelings was "minimal" 1. Mr Cohen's submission that the witnesses knew the plaintiff was not the girl in the photo overlooks the evidence that many of the readers unfamiliar with the plaintiff's appearance either thought it was the plaintiff (as Mr Ippavitz did), or had to ask the plaintiff's friends if it was her (as the plaintiff's friends all said in their evidence). 2. Nor do I accept the submissions that the plaintiff was exaggerating her hurt feelings. The plaintiff and her witnesses gave truthful evidence and were not shaken in cross-examination. 3. An issue of significance, however, is how the Court should determine issues of damages where the publisher acknowledges publishing material that is "scandalous". Is this a reason to reduce the quantum of damages, or to increase it, or does the quality of the publication make no difference at all? (e) Quantum of damage for scandalous publications: less, or more? 1. There can be little doubt, given the contents of Exhibit C, that NRL Memes had a long and undistinguished history of publishing scandalous and false material. Its success can be measured by the more than 300,000 likes noted on the Facebook page. The false allegations made about the plaintiff in the matter complained of were merely the latest example of a scurrilous and salacious series of accusations wholly lacking in any quality of journalism. 2. There is some support for Mr Cohen's submissions in Webster v Brewer (No 3) at [59] where Gleeson J opines: "However, it is significant that [the defendant] Ms Brewer's publications are not reasoned or plausible. They would not have had the impact of an imputation published in a major newspaper by a respected journalist: cf. French at [90]. The video posts are in the nature of rants. In my view, reasonable people would dismiss them as deranged and lacking in credibility. However, I accept that suggestible members of the Mildura community may have considered them credible, particularly in the light of Ms Brewer's claims to be acting in the interests of the Australian community." 1. As Gleeson J notes, this is contrary to the approach taken by McCallum J in French v Fraser, where the defendant wrote two articles available on the internet and sent an email to the plaintiff's employer, the contents of which could fairly be described, to use Gleeson J's word, as "deranged". 2. What these publications share is a feature rarely attributed to non-internet publications, namely the sheer panic and terror caused to the recipient by an avalanche of attention in "vile" publications presided over by an anonymous "keyboard warrior", to use the term given by Mr Geyer in his evidence. 3. I note in passing that "keyboard warrior" seems too complimentary a term, but I am unaware of any better term being employed. Articles about internet trolling and sledging from time to time suggest names; one I thought more appropriate is "monsters from the Id" (Jim Griesemer, "Have we unleashed the monsters?", Digital Culturist, 7 March 2017). However, whatever epithet is to be used to describe such persons, the facts in this case underline the perceptive observations of McCallum J, in French v Fraser (No 3), who commenced her judgment at [1] by stating that the plaintiff's case was: "a distressing illustration of the devastating harm that can be caused by the mischievous use of the Internet as a medium for defamatory publications". 1. Defamation actions in relation to social media allegations of an extreme nature, generally without any basis and driven not by mere malice but some kind of Internet "road rage", are increasingly coming before the courts. Although the allegations may sound unbelievable or bizarre to those in the courtroom, the potential for real harm is not lessened by their implausibility, as was seen in Rothe v Scott [2016] NSWDC 160 (where the plaintiff, a retired high school teacher, was severely assaulted following allegations he was harbouring paedophiles). Dismissing such publications as lacking credibility overlooks the potential for both hurt and harm of a significant nature. 2. In any event, Gleeson J appears to accept that even "vile" publications should still result in substantial awards, notwithstanding his Honour's earlier reservations (at [60]): "I accept that the vile nature of the publications, considered as a whole, makes vindication of the applicants' reputations of particular importance and calls for substantial awards of damages." 1. Perhaps this is why, where publication of a serious allegation is made on social media, damages awarded generally exceed $100,000. This has been the case since the first award for damages for a post on social media (Mickle v Farley [2013] NSWDC ($105,000 including $20,000 for aggravated damages) up to the most recent Gayed v Abdelmalek [2020] VCC 1814 ($120,000 general damages; no award of aggravated damages)). 2. An additional factor to note is that, as the cap on damages is removed if aggravated damages are awarded, I must consider whether such an award should be made before determining general damages. Aggravated damages 1. Mr Rasmussen submitted that aggravated damages should be awarded for the following reasons: 1. The failure to apologise was particularly lacking in bona fides as more than mere failure to reply to the Concerns notices was involved, in that the defendant published his scorn on the NRL Memes pages. 2. The conduct of the litigation was unjustified and high-handed. 3. The plaintiff's hurt to feelings was increased by her knowledge of the falsity of the imputations. 1. Mr Cohen addressed aggravated damages in the following brief paragraph in his written submissions: "11. There should be no aggravated damages. There was nothing about the defendant's conduct that was aggravated. On any view, the offending article was taken down shortly afterwards and there is no evidence of its continuing publication. The failure to apologise was only on the basis that the defendant didn't admit being the publisher. A defence of justification was not run, which would have caused additional hurt to the plaintiff." (Emphasis added.) Failure to apologise 1. While "the mere absence of an apology" (Carson v John Fairfax and Sons Limited (1993) 13 ALR 577) is insufficient, refusal to publish an apology requested by a plaintiff may warrant an award of aggravated damages where the circumstances are lacking in bona fides, improper, or unjustifiable (Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643). A defendant risks inflaming the damages by the publication of contemptuous material: Tobin and Sexton (eds), Australian Defamation Law and Practice, looseleaf, service 90, vol 1 at [22,085]. 2. On 6 March and 22 March 2019, the solicitors for the plaintiff sent two notices of concern containing requests for apology to the defendant at his place of residence. Each of these related solely to the first matter complained of published on the "NRL Memes" website and not, as Mr Cohen erroneously claimed, to the second matter complained of. The apology sought in the letter dated 6 March 2019 was as follows: "On 4 March 2019 I posted material about Montanna Geyer which included a photograph of Ms Geyer and a still from a video. I apologised to Ms Geyer unreservedly for doing so. I was wrong to do it. It was not Ms Geyer that is depicted in the video. I apologise for the hurt and upset that I have caused to her by my false assertions." 1. The defendant's response to this request was no mere failure to apologise, but a grossly insulting and public response, published to the world at large on his NRL Memes page two days later, on 8 March 2019 (Exhibit M): 1. This post included an extract from the matter complained of, although the name "Geyer" has been covered over. In case this was not insulting enough, the defendant published a second NRL Memes post on 8 March 2019 (Exhibit N) which directly named and insulted Mr Mark Geyer as follows: 1. The letter dated 22 March 2019 repeated the request for publication of the apology, noting that there had been no response to the letter from Brydens Lawyers as well as no publication of the apology. It set out the six imputations relied upon in relation to the first matter complained of and warned that unless there was "a satisfactory response" proceedings would be commenced; the letter should be treated as a concerns notice within the meaning of section 14 of the Defamation Act 2005 (NSW) (Exhibit E). The defendant did not reply to that letter and proceedings were accordingly commenced. 2. The defendant was served at his home address with the statement of claim commencing these proceedings on 23 May 2019 by a process server who placed the 15-page document (a letter enclosing the statement of claim) in his letterbox at 13:55pm. Two hours later (according to the Facebook date and time of 3:43 pm on 23 May 2019 appearing on Exhibit O), the defendant posted all 15 pages of the statement of claim on the NRL Memes Facebook page, headed by the sneering comment "FAKE NEWS": 1. A statement of claim may amount to an offer to make amends: Mohareb v Kelso [2020] NSWCA 105. In those circumstances, this post amounts to inflaming the damages by publication of a contemptuous response to an apology, once again to the world at large. In Crampton v Nugawela (1997) 41 NSWLR 176, evidence was led that, when the plaintiff wrote to the defendant concerning the apology he sought, the defendant did not merely refuse this but, in the presence of mutual professional colleagues, used insulting language about the plaintiff. This conduct was a matter which could go to an award of aggravated damages (at 191 per Mahoney A-CJ). 2. Circumstances following publication of this kind, whether they relate to an apology or not, may demonstrate that, far from being regretful, the defendant is persisting in attacking the plaintiff: Clift v Timms [1997] QCA 61. If the defendant had responded by denying publication, or that the publication referred to the plaintiff, that would not have been grounds for an award of aggravated damages (David Syme & Co v Mather [1977] VR 516), but the defendant never did so. 3. The defendant used each of the occasions when an apology was sought to publish further defamatory and insulting remarks in the most public way that he could, namely on his Facebook page. This was high-handed conduct and lacking in bona fides. He well knew that the plaintiff had no connection with the video and, instead of acknowledging his error, he took refuge in insult and invective. It would be hard to find a clearer case of aggravating conduct. Evidence of continuing publication 1. As is noted above, there is evidence that the post was taken down shortly after publication, but there is no evidence that the many copies shared on social media and other online sites such as text messages were removed. However, what little evidence was led at the hearing about when and in what circumstances material was removed is insufficient, and I do not propose, in the absence of such evidence, to award aggravated damages on this basis. The conduct of the litigation 1. Mr Rasmussen relied upon the following areas of conduct of the litigation: 1. The defendant's denial of publication and the conduct of the litigation generally. 2. The hint, in Mr Cohen's submissions on aggravated damages, that the defendant could have pleaded truth. 3. The manner of cross-examination of the plaintiff and her witnesses, which included accusing them of lying, exaggerating and/or seeking publicity for the NRL. 4. The raising of matters in mitigation where there was no plea in mitigation. The conduct of the litigation 1. The defendant's unsatisfactory conduct of this litigation included seeking to avoid case management in the Defamation List by transferring these proceedings in the General List after the first return date in the Defamation List, and failing to comply with the Practice Note DC (Civil) No.1 by providing a statement of issues and schedule of damages. The defendant's solicitor also failed to answer emails sent on my behalf in the week before the trial in my capacity as Trial Judge. In addition, much of the first day of the hearing was thrown away because of the defendant's belated application for a separate trial under Uniform Civil Procedure Rules 2005 r 28.2, which could (and should) have been dealt with in the Defamation List. Mr Rasmussen also drew my attention to the defendant's repeated failures to provide discovery and comply with timetables after the proceedings were transferred to the General List, which resulted in gross sum costs orders payable forthwith on two occasions. 2. Both parties agreed to take the proceedings out of the Defamation List after the first return date, despite the defendant's failure to comply with any of the steps in the timetable except the very late filing of a defence. The resultant case management problems are not matters for aggravated damages. The submissions about not pleading truth 1. I have set out above the portion of Mr Cohen's written submissions in which he refers to the defendant not having pleaded truth. I consider this is mere inelegance of expression on his part, rather than a hint that the defendant could have pleaded a defence of justification. The falsity of the imputations 1. Mr Cohen acknowledged in oral submissions that this was an appropriate matter to take into account in relation to aggravation of damages. 2. In Born Brands Pty Ltd v Nine Network Australia Pty Ltd (No 4) [2013] NSWSC 1649 at [12] and [26], Adamson J permitted the plaintiffs to give evidence as to the falsity; the correctness of this approach was not challenged on appeal. 3. Falsity is presumed at common law, and a particular of falsity increasing the hurt is found in "almost every" statement of claim: Mohareb v Jankulovski [2014] NSWSC 767 at [9]. Without more, that could result in aggravated damages awards in nearly all cases. However, in practical terms, the concept that knowledge of the falsity increased the hurt really only applies where the conduct is contumelious and there is "a relevant plea of conduct": Barrow v Bolt [2013] VSC 226 at [23]. 4. In the present case, the matter complained of is not simply false, or an error, but a figment of the defendant's imagination, created without any research or inquiry of any kind. The defendant's conduct in this regard was clearly contumelious and should be taken into account when awarding damages. Other issues relevant to aggravated damages 1. Mr Rasmussen relies upon the conduct of the trial by the defendant as a basis for an award of aggravated damages. 2. Mr Rasmussen made many complaints about the defendant's conduct of these proceedings. In general terms, issues such as the manner of cross-examination of the plaintiff and her witnesses may be more appropriately addressed by appropriate costs orders rather than an award of aggravated damages. 3. The facts in this case are very similar (in terms of result) to two defamation actions the subject of special costs orders in Nazerali v Mitchell [2016] BCSC 2424, where a plaintiff won one defamation action but lost a second, in circumstances where the misconduct of the litigation included an attempt by one of the successful defendants (who denied publication) to smear the plaintiff's reputation. Affleck J refused to give this successful defendant the benefit of an order for costs to follow the event: "[24] Mr. Bagley's real defence was that he did not participate in the publication of the defamatory words. He chose, nonetheless, to adopt the approach of the Deep Capture Defendants to allege the defamatory words were true and he chose to allege in mitigation of damages that the plaintiff had a generally bad reputation. In my opinion the allegations of truth and of a bad reputation were a gratuitous smear of the plaintiff. Mr. Bagley will bear his own costs." 1. Neither Australian nor Canadian courts really offer any remedy for litigation (other than costs) which has been seriously misconducted by a defendant, as McCallum J notes in French v Fraser. Where the misconduct is by a plaintiff, that is much easier to deal with; see for example Snedden v Nationwide News Pty Limited [2010] NSWCA 98, where a defendant successfully obtained a stay and security for costs for an appeal by a plaintiff charged with (and later convicted of) war crimes (Snedden v Nationwide News Pty Limited [2009] NSWSC 1446; Snedden v Nationwide News Pty Limited (No 2) [2010] NSWCA 117 and Snedden v Republic of Croatia [2007] FCA 1902; nevertheless, the costs burden ($1.2 million) was crippling). That does not mean, however, that a plaintiff should be entitled to seek extra damages as some form of compensation. 2. Accordingly I consider that issues of this kind are best left to submissions on costs. Conclusions as to aggravated damages 1. Aggravated damages should be awarded for the wrongful failure to apologise and for the increase in the plaintiff's hurt to feelings by reason of the falsity of the imputations. Conclusions as to the appropriate amount for damages 1. Mr Cohen did not refer to any comparable judgments and was critical of Mr Rasmussen's reliance upon awards in mass media cases such as Pedavoli. 2. I agree with the observations of Smith DCJ in Gayed v Abdulamlek at [91] – [92] that caution must be exercised when comparing individual awards, especially awards made some time ago. While tables of defamation awards under the uniform legislation are published in Tobin & Sexton Australian Defamation Law and Practice, these are primarily for research and information purposes, and not as a guide to judges as to what sum to award. 3. However, I consider there are special features warranting consideration in judgments where awards are made for online publications in general and social media in particular, and that comparable awards such as Gayed v Abdulamlek may be a guide. The unique features of online publication, such as the international reach and overwhelming nature of "viral" publications, can have a significant impact on the hurt to feelings. Conversely, others, such as the ability to erase and apologise, have strong remediating features if properly utilised. The observations of other judges on these factors are often of assistance in arriving at an appropriate award. 4. Ultimately, however, each case must turn on its facts. In the present case, the evidence of the plaintiff and her family paints a compelling picture of a young woman overwhelmed by a viral falsehood that had a profound impact on her personally for a considerable time. That hurt was more than usually exacerbated by the offensive further online postings by the defendant in response to the plaintiff's solicitors' correspondence with him, and by the falsity of the imputations. 5. Applying the principles set out in Wagner v Nine Network Australia Ltd [2019] QSC 284; [2020] QCA 221, and noting both the structure of awards and the impact of the award of aggravated damages on the cap as explained in those judgments, an appropriate sum for damages is $125,000. Interest, costs and orders 1. I have not been addressed on interest and costs and grant the parties liberty to apply. Orders 1. Judgment for the plaintiff for $125,000. 2. Costs reserved, with liberty to apply in relation to both interest and costs. 3. Exhibits retained until further order. ********** Amendments 09 December 2020 - paragraph 82 - Delete "me" after "too complimentary a term" 09 December 2020 - Paragraph 4, second photo blacked out 09 December 2020 - Paragraph 4, second photo blacked out 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: 09 December 2020