Treasurer partially vindicated in defamation case

18-July-2015 Commercial Disputes By Evatt Styles

The recent defamation case of Hockey v Fairfax Media, handed down by Justice White in the Federal Court on 30 June, has implications for a number of Streeterlaw’s
corporate clients, particularly those who are subject to frequent media and social media attention.

Streeterlaw Senior Commercial Dispute Resolution solicitor Mr Evatt Styles said in light of the decision, many high profile corporate identities would
be reflecting on their own personal and corporate profile and perhaps taking a closer look at any social media activity that may misrepresent them.

“Interestingly, Mr Hockey received $200,000 for damage to his reputation as a result of one Sydney Morning Herald poster that stated
“Treasurer Hockey for Sale” and three associated tweets, but the judge did not find the articles linked to the poster and tweets to be defamatory,”
Mr Styles said.

Mr Hockey, the Federal Treasurer and an elected Liberal Party of Australia member for the seat of North Sydney, was seeking damages in the order of $1
million for a multitude of “slanderous” statements in online publications, articles, social media and tweets by The Sydney Morning Herald (SMH), The Age and The Canberra Times (dating back to May 2014) So it was only a partially satisfactory result for Mr
Hockey.

The published articles and associated headlines and tweets related to Mr Hockey’s involvement with Liberal Party fundraising group the North Sydney Forum
(NSF).

Mr Hockey’s defamation claims

Mr Hockey’s principle focus was on the allegations by the SMH that he “corruptly sells privileged access to himself to a select group which includes business people and business lobbyists in return for donations to the Liberal Party.”

His counsel claimed that the headline “Treasurer for Sale” could be reasonably understood to mean that the treasurer could be bought, which was tantamount
to an allegation of corruption. There were also references in the article to former NSW Government minister Mr Eddie Obeid and his family, which is
a name readers would generally understand as having links to corruption in the NSW Government.

THE JUDGEMENT

The Federal Court Proceedings were in relation to whether the published articles and headlines/tweets did convey an implication of what ordinary, reasonable
readers would have understood in light of their ordinary intelligence, experience and education.

The more sensational the article is, the less likely it is that the ordinary reader is going to read it with the same degree of analytical care that they
may otherwise consider with a book. The reasonable reader has to consider the publication as a whole.

Mr Hockey’s counsel submitted that the use of photographs, headlines and the location of the article on the front page would “have the effect of setting in the mind of ordinary reasonable readers the tone of the article and would have influenced their understanding of what followed.”

FINDINGS

Justice White found the poster headline and tweets reading “Treasurer for sale” were defamatory and were motivated by “malice” by the SMH editor
Darren Goodsir, who had been forced to correct and apologise for a previous article published about Mr Hockey.

Justice White said Mr Goodsir was “motivated by his animus towards Mr Hockey and that he sought a headline which would be hurtful of or damaging to Mr Hockey. This led him to overlook that the article written by the journalist, Mr Sean Nicholls, indicated that what could be obtained by a political donation in the form of membership of the NSF was access to Mr Hockey and NOT Mr Hockey’s judgment or discretion or influence and that Mr Hockey was not for sale at all.

“Mr Goodsir had lost objectivity. If it was not for his desire to get back at Mr Hockey, I consider it probable that he would have selected a less provocative headline.”

Justice White made an award of $120,000 in respect of the SMH poster and an award of $80,000 in respect of the poster and tweets. He said there
was a lack of context given to the tweets.

LESSONS LEARNED

Defamation proceedings are a time-consuming, volatile and expensive exercise. While Mr Hockey’s litigation was partially successful, it is likely his costs
will be high and there may yet be an appeal.

We would advise our clients to consider the commercial viability of any defamation claim they may wish to pursue.

While the law surrounding social media has not changed, it is clear that tweets on their own can be the subject of litigation and there will be closer
scrutiny of this medium in the future.

To receive confidential advice in relation to your rights and potential remedies, please contact Mr Evatt Styles or Streeterlaw’s Principal, Mr Mark Streeter, an Accredited Specialist in Commercial Litigation, on 8197 0105 or by emailing advice@streeterlaw.com.au.

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