News – Recent Case Decision
The recent Supreme Court decision of Peros v Nationwide News Pty Ltd & Ors (No 3) [2024] QSC 192 has reiterated the importance of a plaintiff being required to satisfy the serious harm threshold under section 10A of the Defamation Act 2005 (Qld) (Defamation Act) and the consequences if the plaintiff fails to do so.
Background
In this case, the plaintiff, John Peros (Plaintiff), commenced defamation proceedings against Nationwide News Pty Ltd, Hedley Thomas and Shannah Blackburn (Defendants) over an investigative podcast titled ‘Shannee’s Story’ (Podcast), which implied that the Plaintiff had murdered his ex-partner, Shandee Blackburn (Ms Blackburn).
In 2014, the Plaintiff was charged with the murder of Ms Blackburn, however, after trial in 2017, was found not guilty of that charge by a jury.
In 2019, a coroner conducted an extensive investigation into the death of Ms Blackburn, which included evidence that was not before the jury, enhanced CCTV recordings and police questioning of the Plaintiff about his movements.
On 21 August 2020, the coroner published their findings that remain available online. They include finding that ‘Miss Blackburn died due to injuries sustained in an incident involving violence with Mr John Peros who used a bladed instrument.’
The coroner’s findings that the Plaintiff had violently killed Ms Blackburn was widely reported, which remain online since their publication.
On 14 October 2021, the Defendants began publishing the Podcast episodes, which examined the nature and quality of evidence call in the Plaintiff’s criminal trial and at the coronial inquest, as well as interviewing relevant witnesses, investigators and experts.
The Plaintiff had commenced proceedings in relation to episode 13. During this episode, Shannan Blackburn (third defendant), who was the sister of Ms Blackburn, was interviewed and made various comments about the Plaintiff.
The Plaintiff commenced proceedings against the Defendants regarding what was said in the interview during episode 13 (Publication).
An order was made in accordance with section 10A of the Defamation Act for the determination of the serious harm issue before the trial of other issues.
Key Issue
The key issue to be decided was whether the Publication caused or was likely to cause serious harm to Mr. Peros’s reputation, as required under section 10A of the Defamation Act.
Section 10A(4) of the Defamation Act, allows the Court to make any orders it considers appropriate concerning the determination of the serious harm threshold, including to determine whether the serious harm threshold is established at any time before the trial for the proceedings commenced or during the trial.
This determination was crucial because the serious harm threshold is a prerequisite for defamation proceedings to be commenced and maintained. The court had to assess the impact of the podcast’s allegations on the Plaintiff’s reputation, considering the context and the existing public perception of him due to the coroner’s findings and his previous acquittal.
Decision
The Supreme Court held that the Plaintiff had not proven the serious harm element (met the serious harm threshold) their case against the Defendants. The proceedings were subsequently dismissed with an order that, subject to any further submissions by the parties, the Plaintiff pay the Defendants’ costs of and incidental to the proceedings to be assessed on the standard basis, if not agreed.
Key Takeaways
Notably, His Honour Justice Applegarth, at [412] – [417] reiterated the relevant proof required to establish serious harm, namely:
‘[412] As Warby J stated in Lachaux, “Serious harm may be proved by inference, but the evidence may or may not justify such an inference”
[413] The proposition that a podcast episode that accuses a person of murder, and that is heard by a few hundred thousand listeners, does not cause serious harm to reputation is confronting. The causation issue depends, however, on all the circumstances. For example, if the claimant was a notorious murderer at the time the episode was published, serious harm would not be inferred. Some compelling direct evidence of actual harm to reputation that amounted to “serious harm” would be required.
[414] Depending on the circumstances and the evidence, a newsletter or blog that defames an individual by accusing the person of certain conduct or having a certain character may not cause serious harm if it simply repeats what has been said in earlier publications in the same medium by the same publisher. If the readership already knows of the publisher’s claims about the person, a further publication is unlikely to have a material impact.
[415] The defendant in such a case is not required to prove that its latest publication caused no harm, and it is insufficient for the claimant to prove some harm to reputation. The claimant must prove that a specific publication caused, or is likely to cause, serious harm to reputation.
[416] An inference is not to be confused with speculation. To prove serious harm by inference, or almost exclusively by inference, the inference must be more compelling than competing inferences that are reasonably open on the evidence.
[417] In Sivananthan v Vasikaran, Collins Rice J stated:
“The components of an inferential case must themselves be sufficiently evidenced and/or inherently probable to be capable of adding up to something which discharges a claimant’s burden.”’
His Honour went on further to make the following relevant conclusions:
1. At [443]: ‘The defendants are not required to prove that the plaintiff had a bad reputation prior to Episode 13. The plaintiff is required to prove that Episode 13 caused, or is likely to cause, “serious harm” to his reputation.’
2. At [448] – [452]:
‘[448] If one infers that Episode 13 caused some harm to reputation in fortifying or reinforcing a view already held, or even convincing some listeners of a view that they already strongly held, then I am not persuaded that the extent of that harm amounts to “serious harm” for the purpose of s 10A.
[449] I am not persuaded that Episode 13 probably caused a significant change in the strength of listeners’ beliefs about the plaintiff’s responsibility for the death of Ms Blackburn. However, if it did, I am not satisfied that any further harm to his reputation in that regard amounts to “serious harm” for the purpose of s 10A.
[450] The plaintiff has not discharged his burden of proof that Episode 13 caused serious harm to his reputation.
[451] For essentially the same reasons, I am not satisfied that Episode 13 is “likely to cause” the plaintiff harm in the future. One can no more expect listeners in the future to “jump in” at Episode 13 without knowing anything about the earlier episodes or about the plaintiff than one can conclude that this happened in the past. Episode 13 is not labelled something like “Summary and Conclusion” to which an eager listener would go first. It is the 13th of 20 episodes, and one would expect a person interested in the series to listen to at least the start of Episode 1.
[452] The plaintiff submits that Episode 13 is “likely to cause” him harm in the future because, even if the Coroner’s findings were notorious in 2020, knowledge of them will fade or be non-existent in, say, 2026. I am not persuaded of this, if for no other reason than the Coroner’s findings feature in Episode 1, and are not likely to be forgotten by a listener to Episode 1.’
Importance of the Serious Harm Threshold
The serious harm threshold was introduced in the 2021 amendments to the Defamation Act, as a crucial threshold to be met by plaintiffs. The burden is placed on the plaintiffs to demonstrate that the defamatory publications has caused or is likely to cause serious harm to their reputation.
The threshold serves an important purpose of:
1. Balancing Interests: It balances the right of an individual to freedom of expression, whilst also protecting the reputation of individuals.
2. Preventing Trivial Claims: The threshold requires sufficient proof (or inference) that the plaintiff has suffered serious harm, thereby ensuring the trivial claims are prevented from being commenced or maintained and burdening the Courts.
3. Judicial Efficiency: The threshold allows for the early dismissal of proceedings that do not meet the serious harm threshold, streamlining the legal process and allowing the Court to focus on cases that satisfy the threshold.
Other Notable Cases on the Serious Harm Threshold
1. Lachaux v Independent Print Ltd [2019] UKSC 27:
The UK Supreme Court undertook a substantive examination of the serious harm requirement. The Court considered section 1 of the Defamation Act 2013 (UK) [similar to section 10A (serious harm threshold) of the Act in Queensland] which stipulates:
‘(1) A statement does not qualify as defamatory unless its publication has resulted in, or is poised to result in, significant damage to the claimant’s reputation.
(2) For the purposes of this clause, damage to the reputation of a profit-seeking entity does not constitute ‘serious harm’ unless it has led to, or is likely to lead to, substantial financial loss for the entity.’
The Supreme Court clarified that merely having a defamatory tendency is insufficient and that the burden of proof lies with the claimant to demonstrate that the publication had indeed caused serious harm.
2. Rader v Haines [2021] NSWDC 610; Rader v Haines [2022] NSWSCA 198:
In this case, the District Court of New South Wales considered the interpretation and application of the serious harm element in defamation cases. This case involved an email sent by the plaintiff’s (Rader) parents-in-law in Australia to the plaintiff’s parents in England, containing various allegations about the plaintiff.
The court applied the UK Defamation Act 2013, as the publication occurred in England. The central issue was whether the email caused or was likely to cause serious harm to the plaintiff’s reputation. The court referred to the UK Supreme Court’s decision in Lachaux to interpret the serious harm provision.
The District Court held that Rader failed to establish that they had suffered serious harm, even if they were to accept Rader’s evidence at its highest. As a result, a judgment was made in favour of the defendant (Haines).
Rader did not agree with this decision and appealed the judgment to the New South Wales Court of Appeal. The Court upheld the original decision and dismissed the appeal, with an order that Rader be liable for the legal costs incurred by Haines.
In reaching their decision, the Court of Appeal held (at [29]) that the following conclusions of the trial judge accord with the relevant propositions set out in Lachaux (above):
(1) Section 1 introduced a “new threshold of serious harm which did not previously exist”, and “Claimants therefore need to establish that serious harm has been caused or is likely to be caused as a fact”;
(2) More than the mere inherent tendency of the words is required, even where the words amount to a grave allegation against the plaintiff, and special emphasis is to be placed on the circumstances and extent of publication”;
(3) Serious harm should not be conflated with hurt to feelings. However distraught the plaintiff may have been, this personal hurt is not evidence of harm to reputation because harm depends upon ‘a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated; and
(4) Findings of serious harm should be based on the circumstances and extent of publication, whether the publication was likely to have come to the attention of others at the time or in the future and the gravity of the imputations. The meaning of the words, the situation of the plaintiff, the circumstances of publication and the inherent probabilities are also relevant.’
3. Selkirk v Hocking (No 2) [2023] FCA 1085:
In this case, the Federal Court of Australia provided significant guidance on the application of the serious harm test in defamation cases. This case is notable as it is the first Federal Court authority on the meaning of serious harm under the Defamation Act 2005 (Vic).
The plaintiff, Selkirk, brought a defamation claim against the publisher of an online article that detailed her criminal convictions, which were later overturned on appeal. She argued that the article defamed her by associating her with serious crimes and describing her as untrustworthy and fraudulent, which undermined her professional reputation as a solicitor and caused serious harm by preventing her from obtaining employment in a legal or executive role.
The Court emphasised that plaintiffs must provide evidence quantifying the harm suffered or likely to be suffered and establish a causal link between that harm and the publication. The Court also highlighted that the extent of publication is a key factor in determining serious harm.
At Trial, Selkirk did not deny that she had, in fact, committed the deceitful acts. As a result, the Federal Court held that Selkirk had failed to establish that the publications had or were likely to cause serious harm to her reputation
4. Defteros v Google LLC [2022] HCA 27:
In this case, the High Court of Australia held that Google was not liable as a publisher for including a hyperlink to a defamatory article within its search results. This decision overturned the Victorian Court of Appeal’s earlier ruling, which had found Google liable for defamation.
The case involved Victorian solicitor, George Defteros, who discovered a hyperlink to an article titled “Underworld loses valued friend at court” when he searched for his name on Google. The article reported on his alleged involvement in Melbourne’s “gangland wars” and his 2004 arrest, which was later withdrawn.
The High Court’s majority opinion stated that merely providing a hyperlink does not make Google a publisher of the underlying material. The court emphasised that Google did not direct, entice, or encourage users to click on the hyperlink.
Conclusion
This case and the other relevant cases (among other recent cases) above reiterate the importance of the serious harm threshold in defamation proceedings, as well as the consequences if the threshold is not satisfied.
We encourage you to schedule a 15-minute consultation with our to discuss your situation and explore potential strategies. Your reputation is a valuable asset; let us assist you in safeguarding it.
