New South Wales Supreme Court CITATION : Moubarak v Nationwide News Pty Limited & Anor [2001] NSWSC 176 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20521/00 HEARING DATE(S) : 9 March 2001 JUDGMENT DATE : 4 May 2001 Danny Mourbarak - Plaintiff PARTIES : Nationwide News Pty Limited - First Defendant State of New South Wales - Second Defendant JUDGMENT OF : Simpson J COUNSEL : C Evatt - Plaintiff M Lynch - Defendant Slattery Thompson - Plaintiff SOLICITORS : Blake Dawson Waldron - Defendant I v Knight - Second Defendant CATCHWORDS : Defamation - imputations - implied authorisation to publish - whether posing for photograph can be taken as implied authority to publish relevant photograph - whether necessary to plead knowledge that photograph will or might be used for media purposes - no sufficient allegation of fact in statement of claim. CASES CITED : General Steel Industries Inc v Commissioner For Railway (NSW) (1964) 11 2 CLR 125 DECISION : The paragraphs pleaded in defamation against the second defendant will be struck from the statement of claim. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Defamation List SIMPSON J 4 May 2001 20521/00 Danny MOUBARAK v NATIONWIDE NEWS PTY LIMITED AND ANOR Judgment HER HONOUR : 1 In these proceedings the plaintiff claims damages for defamatory imputations he alleges were conveyed by two separate publications and by two different defendants. As there are some very unusual features of this case, it is convenient to begin by outlining, in some detail, the nature of the plaintiff's claim. 2 The first publication was made on 3 June 1997. It consisted of a photograph of a news report published in the Daily Telegraph of that day. The news item concerned a football match at which, reportedly, the supporters of the competing teams erupted into violence and rioting, which in turn resulted in police intervention and the arrest of a number of the spectators. Accompanying the news report was a photograph depicting two policemen and another man. One policeman was kneeling with his back to the camera, and his truncheon holstered but plainly visible. The other policeman is depicted facing the camera, bending over, but with his face raised so as to be readily identifiable. Between the two policemen is a third man lying on the ground, with his face turned towards the camera in such a way as to render him identifiable to his acquaintances. The police officers are plainly restraining him. It appears that the first policeman mentioned (with his back to the camera) is handcuffing the man's hands behind his back. A caption underneath the photograph reads: "Police hold down one of the fans during last night's riot at Belmore Oval." 3 It was not in dispute that the man on the ground, and obviously under arrest, was the plaintiff. 4 The second publication on which the plaintiff sues was made on a television programme called "The Footy Show" telecast on TCN Channel Nine on 5 June 1997. According to the assertion made in the statement of claim, the photograph from the Daily Telegraph was shown on screen during the course of the programme. 5 The plaintiff has sued Nationwide News Pty Limited, the first defendant, as the publisher of the Daily Telegraph, alleging that the publication of the photograph, together with the caption and the news item, conveyed certain imputations which defamed him. No issue arises for present determination in relation to the claim against the first defendant. 6 However, the plaintiff has also sued the State of NSW as second defendant, and it is in relation to this aspect of the claim that the present application relates. The plaintiff sues the State of NSW as "a legal entity responsible for the officers of the NSW Police Force". There is no present issue as to the liability of the State of NSW where an officer of the NSW Police Service has been shown to have committed an actionable wrong. The present issue concerns whether either or both of the two police officers, if sued individually, could be made liable in the way the plaintiff seeks to make them liable. 7 The second defendant seeks to have struck out of the statement of claim those paragraphs that plead the case against it, on the ground that no reasonable course of action is disclosed, or that the claim is manifestly without prospects of success. 8 It accepts that the relevant test is to apply is that propounded in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. 9 It is therefore necessary to consider the case as pleaded against the second defendant. The plaintiff has pleaded, as allegations of fact, that, on 2 June 1997 at Belmore, officers of the NSW Police had wrongfully arrested, falsely imprisoned, and beaten and assaulted him, and that the police officers depicted in the photograph had posed for the photographer, had "otherwise allowed the said photograph to be taken" and had thereby caused its publication. 10 I have difficulty in perceiving the relevance to the claim in defamation of the allegations of wrongful arrest, false imprisonment and assault and battery, although I recognise that evidence of any acts constituting those torts might assist the proof of other relevant facts in that claim. The essence of what the plaintiff seeks to prove, and to assert in the pleadings, is that the police officers deliberately posed for the photograph, and, by doing so, impliedly authorised its publication, and thus became liable for any defamatory imputations arising from its publication in the Daily Telegraph or on Channel Nine. 11 The argument raises what is, to the best of my knowledge, a novel point (and I was directed to no previous case in which authorisation to publish was held to be implied, or able to be implied, from posing for a photograph). Because of the novelty of the point, I am of the view that the pleading must be interpreted strictly. This is not a case in which loose pleading, or latitude of expression, will be permitted on the basis that what is intended is clear enough. 12 I think it would be possible to infer that posing for a photographer carries with it an implied authorisation to publish the resultant photograph. Indeed, up to a point, publication is the almost inevitable consequence of posing for a photograph. Once a photograph is taken it may, in the normal course, be expected to be processed and to be looked at by somebody other than the photographer. The precise extent of the publication impliedly authorised would be more difficult to determine and would depend upon such surrounding facts as were pleaded and established. For example, posing for a professional photographer in a studio, at the request of the subject, or the subject's mother, or husband, would be unlikely to be taken of itself as authorisation to publish to a wider audience than the photographer, the photographer's staff, and the person commissioning the photograph. 13 On the other hand, deliberately standing in front of an obviously rolling media camera clearly marked with the logo and name of a large media organisation might reasonably be taken as an invitation to the organisation to publish the film to its ordinary audience. The statement of claim contains no allegation that the police officers knew that the camera on which the photograph was taken was the property of, or was operated by, an agent of any media organisation. Nor does it contain any allegation of any circumstances such as the presence of a logo or other identification that should or would or even could have alerted the police officers to the possibility that the photograph (for which they allegedly posed) would come into the possession of a media organisation. Indeed, there is nothing in the statement of claim to suggest that the camera was so owned or operated. So far as the allegations of fact in the statement of claim go, the photograph might well have been taken by an amateur or by a bystander who happened to have a camera to hand. Indeed it may have been taken by a relative or friend of the plaintiff. 14 These possibilities point up the difficulty confronting the plaintiff in the case he seeks to advance against the second defendant. I accept that there may be circumstances, which could be proven, in which a police officer might be held liable as having authorised the publication of a defamatory photograph. Such might occur, as suggested above, where the police officer well knew that a photographer represented a media organisation and deliberately comported himself in such a way as to facilitate the taking of a photograph identifying an individual as a person under arrest. In such a case, however, there are a number of essential elements, not the least of which is the knowledge or state of mind of the police officer. It is not the case, however, as was suggested in argument, that a police officer could become liable for the publication of any photograph taken of an arrest being effected. Such a proposition is ludicrous. 15 I am not here concerned with inquiring into what the plaintiff might be able to establish in this regard; the present inquiry is concerned only with the question whether the case he has pleaded, if established, could sustain his claim. The nearest that case comes to pleading knowledge on the part of either police officer is contained in the assertion that the police officers "posed for the photograph … and otherwise allowed the said photograph to be taken …". The essential element asserted is that those actions had a causal connection with the publication, firstly in the Daily Telegraph, and secondly on TCN Channel Nine. I am satisfied that the factual basis - posing for a photograph - alone (even if proved) is insufficient to establish the causal connection with publication in either of those two media outlets. 16 The consequence of what I have said is that, even if the plaintiff were able to prove all the facts he has pleaded, he would not be able to establish that either of the police officers (and therefore the second defendant) is liable for either publication. Accordingly, the paragraphs pleaded in defamation against the second defendant will be struck from the statement of claim. ********** Last Modified: 05/08/2001 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.