DEFAMATION: WHAT ARE AGGRAVATED DAMAGES AND WHEN ARE THEY AWARDED?
- By Andrew Carpenter –
A recent decision of the Supreme Court of South Australia demonstrates the dangers of publishing defamatory comments about someone, particularly if it’s done on multiple occasions. After a member of a local shooting club published website posts, Facebook posts and email suggesting that another member of the club was corrupt, a bully, a thug and a liar, he probably regretted it when he was ordered to pay $90,000 in damages. The case is an excellent reminder that in some situations, ongoing publication of defamatory material can increase the amount of damages to which a defamed person may be entitled.
Background – defamatory comments
Mr Stokes, who was retired, joined his local shooting club in 2010 and quickly became passionate about clay shooting. Mr Ragless had been a member of that same club for about 25 years. Stokes joined the club’s committee and had many new ideas for the direction of the club. Ragless didn’t agree with some of those ideas and soon the two men were in conflict.
Around 2012, Ragless suffered a nervous breakdown, which resulted in the surrender of his gun licence and firearms. He was also suspended from the club. This had a devastating effect on him.
He set up a website to vent his opinions about what had happened. He also sent a series of emails to other members of the club. Many of his website posts, Facebook posts and emails targeted Stokes and the club committee. Stokes claimed that the posts and emails directly attacked his character because they imputed that he:
- Was corrupt.
- Was a liar.
- Had intimidated or attempted to intimidate Ragless and others.
- Abused his position with the club.
- Was a thug.
- Was a bully.
Stokes commenced legal action against Ragless, claiming that Ragless had defamed him in 132 publications over a period of 41 days. Stokes claimed that the publications were a serious and persistent defamation of his character.
The law of defamation
Defamation is a statement, comment or implication that is harmful to another person’s reputation. To prove defamation, there must be:
- A statement that harms a person’s character and reputation.
- Publication of the statement.
- Identification of the person who has been defamed. This means that the people who know (or know of) the person would believe that the words are about that person.
Publication can occur in any form of communication, including on websites, social media and in emails. If the people who read the publication understand the significance of the statements, then that is sufficient to establish that publication has occurred.
One of the biggest issues in this legal area is that it’s very easy to make any kind of statement about anyone. This is especially true in the internet era when anyone can set up a website or make a social media post. It can be easy to ruin someone’s reputation, but very difficult to salvage it.
There are various defences to a claim of defamation, for example that:
- The statements were true.
- The statements were fair comment. That is, based upon facts that can be proven true and were not malicious.
- The statements were protected by parliamentary privilege or made in the course of legal proceedings.
- The statements were reporting on proceedings of public concern (for example parliamentary sittings).
- Qualified privilege protected the statements. That is, there was a legal social or moral duty to make the statement to someone who had a legal, social or moral duty to receive the information.
The Supreme Court found that Ragless had defamed Stokes. It said that there was harm caused to Stokes’ reputation because when the articles were published on the internet and by email, readers would understand that the statements were about Stokes. It found that the statements exposed Stokes to hatred, contempt, ridicule or lowered his estimation in the eyes of the community.
The Court rejected Ragless’ attempts to defend his conduct by arguing that the statements were protected by qualified privilege because club members had an interest in reading his statements. It also rejected Ragless’ claim that the statements were true.
It said that Ragless’ posts had many defamatory imputations and that they were malicious. Where there is malice, there can be no defence to a claim of defamation.
The Court awarded aggravated damages to Stokes. The purpose of aggravated damages is to act as a punishment for the conduct. For this reason, aggravated damages tend to be substantial. The Court made this decision because:
- The publications caused hurt and distress.
- Stokes had been concerned that Ragless was seeking media attention.
- The publications affected Stokes’ ability to enjoy the sport and to be at the club.
- Ragless had published the statements even though there was an injunction in place that ordered him not to do so.
- Ragless had admitted to the Court that he would never give up making such imputations against Stokes.
- Ragless published a large volume of defamatory material. There was a continual publication over a prolonged period.
The Court ordered Ragless to pay Stokes general damages of $70,000. This was to reflect the amount of harm done to Stokes. It also awarded an additional $20,000 in aggravated damages because the publications were malicious and untrue. The Court also ordered a permanent injunction against Ragless, preventing him from making any further defamatory publications in the future.
What does it mean?
This case is a good reminder to proceed with caution when expressing views about another person, especially on a website, social media or in email. It’s also worth remembering that the effect of defamatory statements or comments can be worsened if there are multiple imputations published over a period of time. Even though these days it’s easy to publish internet material, it doesn’t mean that such material should be published.
The easier it is, the more important it is to think about what you are publishing and to carefully check that you won’t be defaming anyone in the process.
If you are concerned that you may have been defamed, or that you may have defamed another person, contact us today for a free initial consultation. We have an excellent team of defamation lawyers who can help you.
FREE FIRST INTERVIEW
NO WIN NO FEE
LOCAL LAWYERS FOR LOCAL NEEDS
GET THE RIGHT LAWYER FIRST
Having such a short time frame I was very impressed with the outcome made by [my solicitor]. Excellent and timely manner
Very professional mannerism and overall great outcome was delivered by Websters Lawyers.
West Ryde NSW
Helpful, explained fully, patient, excellent service.
Patient and helpful in explaining the process.
Call Websters Lawyers for a most professional and friendly service. All understanding with [my solicitors] and the reception staff. Thank you so much.
Making my will was effortless on my part, with everything explained clearly. Well done to all.
Great service, professional, explains things clearly, definitely recommend Websters Lawyers.
Patient, professional, good communication about procedures and probable outcomes.
Thank you for all your work over the course of the case. You [both] were always very approachable and I appreciated your understanding and professionalism in all areas.
All in all my experience was great. Thank you for your time and expertise.
My matter was dealt with efficiently and was explained in an understandable language. A pleasant experience.
Practical and very helpful. Reasons and explanations given where needed
I stumbled across Websters in the Yellow Pages and I rang, explained my situation and immediately they took my case on. Greatly appreciate their services.
The service from Websters Lawyers was outstanding. [My solicitor] was caring, had patience and was very professional. Wonderful personality.
[My solicitor] made everything so simple to understand. [The receptionist] was wicked too, would recommend them anytime. Level of entire service was outstanding.
I had dealings with Websters over 20 years ago. They were my first choice when I recently needed legal advice. Both legal and office staff were professional, courteous and accessible at all times. Everything was explained up front in a clear and concise manner. I would not hesitate to recommend their services.
It has truly been a pleasure communicating with you throughout the process. I really appreciate your patient and speedy replies to my questions and requests. You were always able to provide an easily understood response and this helped me deal with the process. Your friendly and positive manner encouraged me to seek your advice.
Battery Hill QLD
[My lawyer's] service was prompt and efficient with all questions explained clearly with all our requests carried out within the laws. Overall service was very satisfactory.
[My lawyer] was excellent.
Excellent service. Professional. Clear advice and instructions. Prompt actions. Overall 10/10!
Overall, I was happy with my outcome and my lawyer, would definitely recommend [my lawyer].
[My solicitor] was excellent at helping us through preparing our wills which were particularly challenging as they involved assets in multiple countries. She was professional and knowledgeable and spent time tailoring the wills to our needs.
[My solicitor] was very helpful, respectful and polite. She made sure I understood the process and documentation of our wills.
Professional. Smooth Transaction.
I found the whole experience from Receptionist to Solicitor excellent. They completely put us at our ease.
This was a new experience for us and didn’t have a clue what to do. [Our solicitor] on our first visit put us at ease, explained what will happen, pointed out there was a strong case. [Our solicitor] was genuine in her approach, kept us well informed, explained actions several times with patience and understanding. Overall very happy with the service we received.
[My lawyer] was very reassuring in her approach to my case. I felt that every possibility in terms of evidence to provide and possible outcomes were explained to me, The result of the case was the best possible outcome I could have expected.
With no previous dealing with the criminal justice system, [our solicitor] gave us excellent advice and guided us through a nightmare to achieve a just and correct outcome. [Our lawyer] was both forthright and compassionate in her handling of our case.
[My lawyer] explained all the legal terms in language I could understand – she was very easy to talk to.
Cameron, Munno Para
I felt confident knowing my matter was in good hands. Very professional!
Shravan, Christie Downs
Initial phone call was fantastic and the role of an executor was fully explained.
Penny, Henley Beach
The service I received was efficient and promptly finalised. The solicitor clearly explained the details and I was happy with how easy it was.
Dale, Fairview Park
[My lawyer] was exactly the lawyer I needed in a serious matter. The outcome was as predicted which was a fantastic result. I received prompt professional and personal service at all times. Capable and supportive in a very stressful period.
Jason, Munno Para West
I had any of my concerns answered to my satisfaction and understanding.
Valda, Ingle Farm
[My lawyer] is an excellent professional lawyer who assisted in achieving a great positive outcome/result. I sincerely thank you and your great staff for your assistance and guidance throughout my claim. Would highly recommend [my lawyer], staff and Websters Lawyers. Kept fully informed and guided, professionally throughout the matter.
Our work was dealt with very efficiently and speedily. Our lawyer was very professional, at the same time as being approachable. Communication was great.
My experience with Websters Lawyers was far beyond what I expected. From the moment I spoke to [my lawyer] she made me feel very comfortable and eased my stress. In my case I had a court appearance the day before we were scheduled to fly to Spain, Considering my first appointment with her was only 2 weeks before the court hearing, she was able to obtain the police statement and thoroughly work on my case within that limited time frame. She was very knowledgeable, understanding and confident which greatly relieved so much pressure from me and my family. At court, she explained everything thoroughly and advised me of all the possible outcomes. Price, service and result, very highly recommended. Thank you Websters Lawyers.
Rafael, Davoren Park
I have high expectations and they were met. Websters service was swift, courteous, professional and met the agreed budget. I will recommend Websters to my family, friends and colleagues. Thank you.
I would recommend Websters Lawyers, especially for [my lawyer's] dedication and exemplary attitude and advice. She is the epitome of a good lawyer. The service was impeccable.
Pamela, West Lakes
[My lawyer] was very professional and I was made comfortable to understand.
I was very pleased with the end result and how well [my lawyer] conducted herself.
Jesse, Morphett Vale
[My lawyer] has been very prompt , reliable and provided a high level of communication.
My experience at Websters was very positive. The stress was taken from me and I could not be happier with the outcome. [My lawyer] at Websters was professional, personable, available and caring. Thank you for making the experience stress free.
Magda, Holden Hill
Found my lawyer upfront and reliable – I would highly recommend Websters Lawyers.
Lee, Evanston Park
Top bunch of solicitors and admin staff. Very friendly and to the point service.
Bradley, Hallett Cove
Websters Lawyers were very professional in their service, I would be happy to recommend them.
Carole, Tea Tree Gully
We would not hesitate in recommending Websters for any legal matter. They are professional and courteous at all times and call back when they say they will.
David and Dianne, Lockleys