Posted on March 26, 2014 by
Damages for Defamation – From the ‘Grapevine’ to the Group Email
We recently reported on a case (Mickle v Farley  NSWDC 295) highlighting the ‘grapevine effect’ of defamatory comments posted on social media and how this impacts on the assessment of damages to the injured party.
However, a recent case in the Supreme Court of NSW concerning defamatory remarks made by a councillor about a developer indicates that statements made via email may not be treated in quite the same way when it comes to the assessment of damages.
The decision in Ell v Milne (No 8)  NSWSC 175 demonstrates that the Courts may adopt a much more cautious approach in relation to defamatory comments sent by email compared to defamatory comments made on social media sites such as Twitter and Facebook. (see ‘Grapevine effect of social media is recognised in defamation case‘)
Mr Ell, a property developer, brought an action for defamation against Ms Milne, a councillor on Tweed Shire Council. The action was the result of an email authored by Ms Milne, headed ‘letter to the editor’, which was sent to around 70 email addresses.
Mr Ell complained that part of the email, which stated that he ‘supplied bail’ for Mr McGurk (who had been murdered), had defamed him.
McCallum J held that the comments complained about conveyed the imputations that Mr Ell had a ‘scandalous association with the murdered man Mr McGurk’ and that ‘he conducted his business with regard to property development by employing a person with a reputation for violence’ .
But in determining the damages to be awarded to Mr Ell, McCallum J had to consider the scope of the publication and whether it had been read by each of the 70 persons and others to which it was forwarded.
Under the law of defamation, ‘it is only when a defamatory publication is comprehended by the reader that harm to reputation is done’.
Ms Milne was prepared to admit that her email was published, or re-published, where the evidence demonstrated that her email had been opened or forwarded.
However, Mr Ell relied on caselaw to the effect that proof of posting a letter is prima facie evidence of its publication to the addressee. McCallum J doubted whether that principle applied to emails, and held that it was necessary to consider whether ‘it is a matter of reasonable inference’ that the email was ‘actually seen and read by some third party’.
Ms Milne also argued that because the email was headed ‘letter to the editor’, it was apparent that it would not be personal to the recipient and would not have been opened by every recipient. Secondly, the subject matter would not appeal to every recipient, and some recipients might have lost interest in the subject matter upon reading the opening parts of the email whereas the defamatory passage was located more than halfway through the email.
McCallum J accepted that there was some force in Ms Milne’s arguments, but was not prepared to accept that only those people who opened or forwarded the email had read it. Her Honour found that it was impossible to quantify the number or class of persons who read the email, but was satisfied that ‘the email was probably read by more than a few people, but considerably fewer than the complete list of persons to whom it was sent’.
Mr Ell did not attend the hearing and did not call any witnesses to attest to his good reputation, as is common in defamation matters. Nonetheless, McCallum J held that Mr Ell enjoyed the benefit of a legal presumption that on proof of a defamatory publication, some damage is caused to reputation, for which damages must be awarded.
McCallum J held that the defamatory imputations were serious, and whilst the scope of publication was limited, the appropriate level of damages was $15,000.
It is clear from Ell, that in the absence of clear evidence, defamatory statements made in an email are unlikely to be held to have a ‘grapevine effect’ in the sense described in Mickle.
On the one hand, this may be surprising given the ease with which emails can be forwarded to large groups of people. However, on the other hand, it may be that this result is justified on the basis that users of social media and users of email interact with those media in different ways. It is probably the case that social media is used in a much more active way than email, and this is appropriately reflected in the differing approaches in Ell and Mickle. No doubt, defamation cases involving publications on social media will become more common, and the courts will have more to say about how the scope of publication should be assessed.