7 October, 2017
On 13 September 2017, Justice Dixon handed down the judgement in Wilson v Bauer Media Pty Ltd & Anor [2017] VSC 521 (Wilson v Bauer) in the Supreme Court of Victoria. This decision is unprecedented not only because it marked the largest award of damages in Australian defamation law history, a record AUD 4,578,472, but because of Justice Dixon's decision not to apply what is ordinarily a strictly capped award for general damages.
Background facts
Between 18 May 2015 and 20 May 2015 Bauer Media Pty Ltd and Bauer Media Australia Pty Ltd (the Defendants) published multiple articles, one in a print edition and seven further articles on websites to the effect that Wilson was a "serial liar". The articles claimed that Wilson had "invented fantastic stories… to make it in Hollywood" and that amongst other things, she: [1]
- claimed to be 29 years old when, in fact, she is 36 years old;
- used the fake name ‘Rebel Wilson’ when, in fact, her real name is Melanie Elizabeth Bownds; and
- lied about her a number of aspects of her background and upbringing.
The "defamatory sting" of the articles almost instantaneously reached the United States, spreading across television, radio, social media and the entertainment industry. Repeating the language from previous defamation cases, Justice Dixon said that the sting was "a toxic poison… [and Wilson] cannot reasonably be expected to track the course of information on the internet or anticipate where information may surface."[2]
The Proceedings
Proceedings were commenced by Wilson alleging that she had suffered injury to her feelings, credit and reputation, had been humiliated, embarrassed and suffered loss. Wilson subsequently brought claims for general damages as well as special damages for loss of earnings in the 18 months period from May 2015 until the end of 2016. She claimed a gross loss of AUD 6.771 million in relation to the new screen roles less income earnt in that period.[3]
The Defendants denied Wilson's claims. They raised defences of justification, triviality, and qualified privilege.
The defences were rejected and it was found that the articles falsely conveyed that Wilson was "a serial liar" who had "fabricated almost every aspect of her life" and that this caused injury to Wilson's feelings and her reputation.
Damages awarded: the inapplicable cap
Justice Dixon awarded AUD 4,578,472 in damages. This consisted of:
- AUD 650,000 in general damages, including aggravated damages; and
- AUD 3,917,472 in special damages for Ms Wilson’s lost opportunity for new screen by reason of the Defendants' publications.
General Damages
Ordinarily, damages for non-economic loss are capped at AUD 389,000[4] by section 35 of the Defamation Act 2005 (Vic). The only circumstances in which this cap can be circumvented are if the Court is satisfied that the circumstances of publication of the defamatory matter warrant an award of aggravated damages. In such a case, damages may exceed the cap.[5]
Justice Dixon considered the kind of circumstances an award of aggravated damages is warranted. His Honour found there to be aggravating factors in this case due to the Defendants having:
- failed to properly investigate, before publishing them, allegations that they regarded as defamatory;[6]
- knew that the imputations that they conveyed were false, but they proceeded to publish nonetheless; [7] and
- repeated the offending imputations, to keep the information circulating and current and neutralise Wilson's response.[8]
The Defendants' conduct was considered malevolent, spiteful, lacking in bona fides, unjustifiable and improper.[9] Justice Dixon was satisfied that this cumulative and repeated conduct was a circumstance of aggravation because it ultimately had become part of "an ongoing feed into the grapevine effect on the internet and entertainment media".[10] His Honour accordingly rejected the ordinary application of the cap and in this respect said:
"…only a substantial sum of damages would be adequate to convince the public that Wilson is not a dishonest person and bring home the gravity of the reputational injury…. [and] unless substantial damages are awarded there is a real risk that the public…will wrongly conclude that the articles were trivial….".[11]
Special Damages – 'loss of opportunity'
Wilson's case for special damages claim was for the loss of opportunity of earnings between mid-2015 until the end of 2016 because she was not, but would have been, offered lead roles in films in that period.
Following the success of the film Pitch Perfect 2 coinciding with the defamatory articles, his Honour was satisfied that the unexpected lull in Wilson's career in this period was a result of the Defendants' defamatory publications.
Justice Dixon highlighted that while the tort was committed wholly in Australia, because of Wilson's occupation and fame, the "sting was repeated by a reasonably foreseeable grapevine effect" [12] and this caused Wilson special loss. This in essence, was the loss of an opportunity.
Special damages were awarded on the basis that Wilson would have earned USD 5 million in each film (and that this should be valued at three films), taking the gross amount to USD 15 million. This was subsequently discounted by 80% to take account of other factors including whether the film would have been completed, tax considerations, Ms Wilson's costs and other general uncertainties.[13]
Accordingly USD 3 million were awarded in special damages, assessed at AUD 3,917,472.
Implications of the decision
This unprecedented award of damages, exemplified by Justice Dixon's decision to not apply the statutory cap, has raised questions about the quantification of damages in future defamation law cases in Australia.
Whilst this case may inspire potential defamation claimants towards litigation in anticipation of receiving a similar award, any claimant should be aware that the bespoke nature of Ms Wilson's occupation as a film actress separates this case from most. Ms Wilson's substantial income is intrinsically linked to her reputation and personal marketability; it is these factors that resulted in such a substantial award of both general and special damages.
In many defamation cases, the impact a publication has on a person's reputation is difficult to quantify, however in this case, Justice Dixon had evidence before him quantifying the opportunities Ms Wilson lost, which is significantly unique to her personal circumstances (i.e. being a globally recognisable film actress).
Considered in this context, it is unlikely that Wilson v Bauer will create any determinative change over the calculation of damages in future defamation cases. However, it may have an effect on the tabloid media's approach to covering stories relating to high profile celebrities, given the potential exposure to large general and special damages awards for unverifiable defamatory publications. The decision has certainly highlighted the need to be vigilant in fact checking of publications and the vetting of any sources.
It remains to be seen if the decision will be appealed.
[1] Wilson v Bauer Media Pty Ltd & Anor [2017] VSC 521 at [8] to [15].
[2] Wilson v Bauer Media Pty Ltd & Anor [2017] VSC 521 at [277].
[3] Wilson v Bauer Media Pty Ltd & Anor [2017] VSC 521 at [139].
[4] Wilson v Bauer Media Pty Ltd & Anor [2017] VSC 521 at [54] noting that the cap was AU $381,000 at the time of trial. At [55] the Court noted that the cap is now AU $389,500, having increased from 1 July 2017 and this is the presently applicable cap.
[5] Defamation Act, s 35(2).
[6] Wilson v Bauer Media Pty Ltd & Anor [2017] VSC 521 at [90].
[7] Wilson v Bauer Media Pty Ltd & Anor [2017] VSC 521 at [90].
[8] Wilson v Bauer Media Pty Ltd & Anor [2017] VSC 521 at [91].
[9] Wilson v Bauer Media Pty Ltd & Anor [2017] VSC 521 at [80].
[10] Wilson v Bauer Media Pty Ltd & Anor [2017] VSC 521 at [392].
[11] Wilson v Bauer Media Pty Ltd & Anor [2017] VSC 521 at [378].
[12] Wilson v Bauer Media Pty Ltd & Anor [2017] VSC 521 at [153].
[13] Wilson v Bauer Media Pty Ltd & Anor [2017] VSC 521 at [294] to [314].
For further information, please contact:
Janette McLennan, Partner, Clyde & Co
janette.mclennan@clydeco.com
