Supreme Court New South Wales Medium Neutral Citation: Eardley v Nine Network Australia Pty Ltd [2017] NSWSC 1374 Hearing dates: 17 November 2017 Decision date: 17 November 2017 Jurisdiction: Common Law Before: McCallum J Decision: Truth defence in respect of plaintiff's imputations 5(a), (b) and (c) struck out. Plaintiff's objections to the truth defence are otherwise rejected; contextual imputation (iv) is struck out; plaintiff has leave to file a further amended statement of claim appropriating the remaining contextual imputations on the condition to which I have referred; costs of today's argument each party's costs in the cause Catchwords: DEFAMATION – defences – application to strike out truth defences – significance of "liking" a post on Facebook – whether capable of establishing responsibility for post – contextual imputations – whether different in substance from plaintiff's Legislation Cited: Defamation Act 2005 (NSW), ss 25, 26 Cases Cited: Chel v Fairfax Media Publications Pty Ltd [2015] NSWSC 171 Fairfax Media Publications v Zeccola (2015) 91 NSWLR 341; [2015] NSWCA 329 Hayson v John Fairfax Publications Pty Ltd [2007] NSWCA 376 Hayson v John Fairfax Publications Pty Ltd [2007] NSWSC 763 Jones v TCN Channel Nine Pty Ltd (No 3) [2016] NSWSC 922 MacDonald v Australian Broadcasting Corporation [2014] NSWSC 1472 Category: Procedural and other rulings Parties: Denby-Lea Eardley (plaintiff) Nine Network Australia Pty Ltd (first defendant) Erin Willing (second defendant) Representation: Counsel: R Glasson (plaintiff) M Richardson (defendants) Solicitors: Carroll & O'Dea Lawyers (plaintiff) Mark O'Brien Legal (defendants) File Number(s): 2017/106487 Publication restriction: None Judgment 1. HER HONOUR: These proceedings raise an interesting question as to what it means to "like" a post on Facebook. 2. The plaintiff is a senior member of the New South Wales police force. She has brought an action for defamation arising out of a segment on a Channel Nine News broadcast in April 2016. 3. The news item related to an alleged campaign of online bullying against Greens MP Ms Jenny Leong. The alleged campaign began after Ms Leong made a statement on her own Facebook page when the Greens moved to introduce a bill aimed at ending the use of drug sniffer dogs in public spaces without a warrant. 4. The proposed introduction of the bill was evidently not popular among some sections of the police force. Ms Leong's post attracted a large number of negative comments, some of which, evidently posted by serving police officers, were unedifying and offensive. 5. Unsurprisingly, Ms Leong referred the matter to the Police Integrity Commission. It was that referral which was reported on the segment of Channel Nine News sued on in these proceedings. 6. The news item included staunch criticism of the police involved, accusing them of making a personal attack aimed at humiliating Ms Leong. The item stated: The harassment includes a string of sexist and racist posts that were liked, shared and commented on on social media. 1. The plaintiff's amended statement of claim filed 1 September 2017 specifies eight imputations allegedly conveyed by the news item. The defendant has filed a defence pleading, in addition to the usual optimistic denials about defamatory meaning, two specific defences, namely the defence of justification under s 25 of the Defamation Act 2005 (NSW) and the defence of contextual truth under s 26 of the Act. The plaintiff today moves to have those defences and alternatively parts of them struck out. 2. The truth defence is supported by lengthy particulars about the posts the subject of Ms Leong's referral to the Police Integrity Commission, identifying, first, a post allegedly posted by a Sydney-based sergeant of the New South Wales Police Force in response to Ms Leong's initial post about drug sniffer dog legislation, secondly, a profile picture posted by the same sergeant evidently on his own Facebook page, and finally a separate post allegedly posted by a "Sydney city based detective" on his Facebook page. 3. The last is referred to in the proceedings as the JL condom post. It consists of a photograph of Ms Leong together with the words "one condom could have prevented this from happening". The only act attributed to the plaintiff specified in the particulars in support of the truth defences is the allegation that she, using her Facebook account, "liked" and thereby endorsed the JL condom post. 4. The first objection to the defence is that those particulars are not reasonably capable of establishing the truth of the imputations. Mr Glasson, who appears for the plaintiff, acknowledged that, in order for a defence of justification to be struck out, the plaintiff must demonstrate to the requisite relatively high standard that the pleaded particulars fall "so far short of being capable of supporting the truth of the imputations" as to warrant summary dismissal of the defence: see Hayson v John Fairfax Publications Pty Ltd [2007] NSWSC 763 or are "incapable" of proving the substantial truth of the relevant imputations: see MacDonald v Australian Broadcasting Corporation [2014] NSWSC 1472. 5. Mr Glasson submitted that the mere fact of the plaintiff having "liked" (in the Facebook sense) the JL condom post is incapable of proving any of the imputations. 6. It is convenient to consider the imputations in groups. The first three imputations specified by the plaintiff are imputation 5(a), (b) and (c) as follows: (a) the plaintiff, a serving police officer, was one of the persons responsible for the posting of a string of sexist posts on social media aiming to bully, attack and humiliate pregnant Greens MP, Jenny Leong. (b) the plaintiff, a serving police officer, was one of the persons responsible for the posting of a string of racist posts on social media aiming to bully, attack and humiliate pregnant Greens MP, Jenny Leong. (c) the plaintiff, a serving police officer, was one of the instigators of a campaign of online harassment by senior management of the NSW Police Force of pregnant Greens MP, Jenny Leong. 1. Mr Glasson submitted, in my view correctly, that each of those imputations poses an objective enquiry as to whether the plaintiff was responsible for or an instigator of the relevant posts or campaign respectively. 2. Mr Richardson submitted that to "like" a post on Facebook is effectively the same thing as posting the material oneself. With great respect to him, I do not think that is a tenable argument. It is, in my opinion, clear enough from the matters particularised in the truth defence that the plaintiff was not the person who posted the JL condom post, nor indeed the person who instigated anything of a campaign of online harassment of Ms Leong. Acknowledging the high bar the plaintiff must meet on this issue, I am satisfied that the matters particularised to date are incapable of proving imputations (a), (b) and (c). 3. Mr Richardson relied in this context on the well-worn passage from the decision of the Court of Appeal in Hayson v John Fairfax Publications Pty Ltd [2007] NSWCA 376, and in particular the remarks of Hodgson JA (with whom Tobias and Santow JJA agreed) as follows (at [20]): However the particulars do not themselves indicate the outer limits of what may be proved. They indicate, in effect, topics on which evidence may be led. But the full effect of evidence led within the particulars may be greater than what the bare particulars themselves indicate. 1. That passage is frequently cited in this list. It is a fine example of a statement in a particular case which has been sought to be elevated to a rule effectively prohibiting summary dismissal of a defence. As submitted by Mr Glasson, in order to consider its application in any particular case, it is necessary to have regard to the kind of allegations sought to be proved and the kind of particulars provided to date. In the case of imputations (a), (b) and (c), it is not a case where the defendants are likely by interlocutory processes to shake more fruit out of the tree, as Mr Glasson put it. The simple fact is that the only act the defendants appear to be able to attribute to the plaintiff is that of "liking" a particular post out of the several posts which appear at different virtual places. I think this is a case in which one can take the rare step of saying at this point that the particulars are incapable of proving the substantial truth of those imputations. 2. The remaining imputations, I think it must be acknowledged, are in a different category. Imputations 5(d) and (e) are: (d) The plaintiff, a serving police officer, engaged in a campaign of online bullying and harassment against pregnant Green MP Jenny Leong that was contrary to her duty as a police officer to serve and protect members of the public. (e) the plaintiff, a serving police officer, engaged in a campaign of online bullying and harassment against pregnant Greens MP Jenny Leong that was sufficiently serious to warrant referral to the Police Integrity Commission for investigation. 1. An important difference between those two imputations and imputations (a), (b), and (c) is that they attribute to the plaintiff the act of engaging in the campaign, rather than posting the material or instigating the campaign. Whilst it may be an ambitious defence to say that a single "like" of a single post in a collection of separate posts amounts to engaging in a campaign of bullying and harassment, I do not think I can properly take that issue from the jury. Imputations (f), (g) and (h) are: (f) the plaintiff is a racist. (g) the plaintiff is a bully. (h) the plaintiff is an online troll. 1. I accept, as submitted by Mr Richardson, that the truth defences in respect of those imputations raise the sort of value judgments properly left to the jury. In addition, in respect of those three imputations, there is the prospect that further interlocutory processes may produce more relevant information. For example, the plaintiff's awareness of other aspects of the alleged campaign, or other particular posts, or her attitudes to various matters, might inform the proof of those imputations. 2. The second aspect of the plaintiff's challenge to the defence relates to the defence of contextual truth. First, it was submitted that the contextual imputations are not capable of arising "in addition to" the plaintiff's imputations. 3. Mr Glasson frankly acknowledged that, following the decision of the Court of Appeal in Fairfax Media Publications v Zeccola (2015) 91 NSWLR 341; [2015] NSWCA 329, plaintiffs face a higher bar in having contextual imputations struck out on this ground, the perceived requirement that imputations must differ in kind having been confirmed not to exist. It is enough if a contextual imputation differs in substance from a plaintiff's. 4. The first specific contention in respect of the contextual truth defence is that contextual imputations (i), (ii) and (iii) do not differ in substance from the plaintiff's imputations. I am satisfied that each of those imputations does specify a different aspect of the conduct attributed to the police in the news item from those distilled in the plaintiff's imputations. 5. Contextual imputation (i) focuses on whether the alleged online bullying amounted to a breach of the New South Wales Police social policy guidelines. The guidelines are expressly referred to in the matter complained of but not included within any of the plaintiff's imputations. 6. Similarly, imputations (ii) and (iii) focus respectively on attributions of unprofessional conduct and hypocrisy, neither of those being an attribution distilled in any of the plaintiff's imputations. 7. Contextual imputation (iv), however, is in a different category, in my view. That imputation is that the plaintiff had so acted in breach of the New South Wales Police social policy guidelines as to warrant referral to the Police Integrity Commission for investigation. 8. Mr Glasson submitted that that imputation is not capable of being conveyed in addition to the plaintiff's imputation 5(e), which is that the plaintiff engaged in a campaign of online bullying and harassment against Ms Leong that was sufficiently serious to warrant referral to the PIC for investigation. 9. Upon analysis of the material sought to be relied upon to prove the truth of the contextual imputation, it is clear in my view that the alleged breach of the social policy guidelines is and is confined to the campaign of online bullying referred to in imputation 5(e). Acknowledging the high bar a plaintiff faces in this context, I am satisfied that contextual imputation (iv) is incapable of arising in addition to imputation 5(e), that is to say, that it is incapable of satisfying one of the elements of the defence of contextual truth under s 26. That contextual imputation will be struck out. 10. Subject to being reminded of anything I have overlooked, I think the only remaining contest relates to the plaintiff's desire, communicated in correspondence, to appropriate such contextual imputations as survive today's argument as her own imputations. 11. The entitlement of a plaintiff to take that course has been considered in a number of my decisions in proceedings in this list, including Chel v Fairfax Media Publications Pty Ltd [2015] NSWSC 171 and Jones v TCN Channel Nine Pty Ltd (No 3) [2016] NSWSC 922. Mr Richardson, I think, ultimately accepted that the plaintiff may be able to establish an entitlement to take that course in accordance with those principles but submitted that she should be required at the very least to prove the contention implicit in the application that each of the contextual imputations is false. 12. Mr Glasson submitted that such a contention is implicit in the plaintiff's assertion of the falsity of relatively similar imputations in her own pleading. I do not think there should be a need for the plaintiff to put on evidence as to the asserted falsity of the contextual imputations she seeks to appropriate. 13. In this respect, Mr Richardson is, in effect, hoist on the petard of his own reasonable conduct in other proceedings in this list, where he has contributed to the evolution of a practice pursuant to which plaintiffs are ordinarily entitled to appropriate contextual imputations upon condition that, in the event that a contextual imputation is proved true at the trial, the imputation may at that point be relied upon by the defendant in support of the contextual truth defence. 14. That practical solution to the complexity posed by the convoluted provisions of ss 25 and 26 of the Defamation Act is, in my view, an outcome which assists in the conduct of proceedings in this list and which should apply in this case. 15. For those reasons I make the following orders: 1. The truth defence in respect of plaintiff's imputations 5(a), (b) and (c) is struck out. The plaintiff's objections to the truth defence are otherwise rejected. 2. Contextual imputation (iv) is struck out. 3. The plaintiff has leave to file a further amended statement of claim appropriating the remaining contextual imputations on the condition to which I have referred. Costs 1. HER HONOUR: The defendants, having enjoyed partial success in resisting the plaintiff's objections to the defence, seek half their costs of that application. 2. The plaintiff submits that the result of the judgment I have just published is in effect in the nature of a draw and that there should either be no order as to costs or an order that costs should be each party's costs in the cause. 3. At first blush, it may appear that the defendants enjoyed a higher measure of success than would be reflected in the position contended for by the plaintiff. However, the Court should be wary in seeking to quantify or apportion such results where there has been some manoeuvring behind the scenes, as there evidently has been in these proceedings. It is my impression that the fairer result as to costs would be that the costs of today's argument be each party's costs in the cause, and that is the order I make. ********** 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: 07 December 2017