BEFORE INSTITUTING LEGAL PROCEEDINGS SEEKING MONETARY DAMAGES, CONSIDER YOUR POSITION CAREFULLY.

A recent defamation case in which the plaintiff was awarded only $100 in damages serves as a pertinent and timely reminder to those persons who have been defamed on Facebook or other social media platforms, and are considering instituting legal proceedings, to ensure that they have relevant and compelling evidence to support a claim for hurt feelings or distress and actual harm to, and vindication of, their reputation.

Without that evidence, it is open to the Court to make a finding that the driving motivation for the litigation is only monetary reward and assess damages accordingly.

In McEwan v McDaniel [2020] QDC 321, the Court awarded the plaintiff, a proprietor of a Mixed Martial Arts (MMA) supply business and a tile business who was defamed on a public Facebook post, only $100 in damages.

The Court considered:

• whether the plaintiff genuinely had any hurt feelings or distress because of the post; and
• the extent of actual harm to the plaintiff’s reputation.

The plaintiff’s case

The plaintiff had been an active member of the MMA industry in Australia for over twenty years and supplied MMA fight clothing and equipment to the MMA industry in Australia, in addition to his proprietorship of a tile business.

He was also a sponsor of MMA fighters.

The plaintiff would provide the sponsored fighter with the plaintiff’s brand merchandise and products and cover general expenses, but the plaintiff stopped short of paying travel costs for sponsored fighters to attend fights. He considered the promoters of that fight should pay those costs.

This would not seem to be unreasonable, however the defendant did not see it that way.

The plaintiff had sponsored a fighter with special needs for about three years. The plaintiff refused to pay for this fighter to fly from Melbourne to attend a fight in Brisbane. The defendant, who had at one time been sponsored by the plaintiff, took the plaintiff to task for this refusal to pay travel costs.

The defendant created a video which was published on his public Facebook account together with a post, both of which specifically named the plaintiff and included the following statements:

• “a weasel of a man”
• “petty little man”
• “you don’t deserve the gum I scrape off my shoe”
• “dill pickle”
• “his gear sucks… and it totally represents the attitude of the owner anyway”

The plaintiff demanded the defendant remove the video and the post. The defendant rejected the demand. The post was subsequently removed from Facebook after two days, but by that time, the post had tagged 41 other Facebook users, had received 75 likes and 90 comments, and had been shared by 7 Facebook users on their own accounts.

Word had indeed got around.

The plaintiff subsequently issued proceedings seeking $250,000 for, amongst other things, damage to the plaintiff’s reputation, both personally and as a business owner but curiously, the plaintiff did not allege that he had suffered hurt feelings or distress. The defendant failed to file a defence and the plaintiff obtained a default judgement with damages to be assessed. Because liability was not in issue, the plaintiff was clearly anticipating a substantial monetary award.

The principles of assessment

The plaintiff made no claim for economic loss.

The Court succinctly outlined the general principles that guide the Court in its task of assessing damages in a defamation claim.

In particular, the Court referred to the overlapping purposes that are applicable to an award of damages for defamation.

The Court noted that without a claim for economic loss, these purposes are:

(a)       Consolation for the plaintiff’s hurt and distress caused by the publication;

(b)       Reparation for the harm done to the plaintiff’s reputation; and

(c)        Vindication of the plaintiff’s reputation.

The extent of the person’s hurt feelings “must be established on the evidence and the court’s assessment of it.”

Section 34 of the Defamation Act 2005 (Qld) requires the Court to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.

The assessment of damages

Reputation

The only evidence presented by the plaintiff as to his reputation within the MMA community was when the plaintiff commented in a hearing “I am sort of in the upper echelon of my world.”

The Court noted that given the absence of any evidence as to the reputation of the plaintiff, or that the post had any effect upon the plaintiff’s reputation, any harm to the plaintiff’s reputation appeared to have been caused by his own conduct in refusing to pay for the sponsored fighter’s flight, not by the publication.

Hurt and distress

The Court noted that the plaintiff had not alleged hurt feelings or distress in the statement of claim or written submissions or sworn to in any of the plaintiff’s affidavits and that it was not apparent from the plaintiff’s oral evidence that the plaintiff had any hurt feelings or distress because of the video or post.

The plaintiff himself, in oral testimony, stated that “if every time someone whinged at you, then you reported it, you’d never do anything else but that, you know, so I take it with a grain of salt. I’ve got thick skin” and “if – if – if I took issue with every hater, honestly, it’s – the skin’s thicker than that”.

The Court pointed out that the plaintiff was robust in his approach to the posts and the Court and appeared to genuinely consider that merely by being called a weasel, petty little man and a dill pickle, and it being said that his business or products sucked or were crappy, that he was entitled to the substantial damages claimed.

His arrogant manner suggested that the driving motivation for the litigation was not vindication of his reputation, but a monetary reward.

The Court concluded that the plaintiff did not suffer any hurt feelings or distress because of the publications.

Conclusion

In light of these findings, the court considered the plaintiff’s award of damages “should be very low”.

And it was.

Absent sufficient evidence to support a claim for hurt feelings or distress and actual harm to, and vindication of, their reputation, a prospective plaintiff should carefully consider their position before suing.

The team at Axia Litigation Lawyers is experienced in all aspects of litigation and dispute resolution and is well-placed to advise you on all evidentiary matters prior to the institution of legal proceedings. Contact us today to arrange an initial consultation with one of our experts. At Axia Litigation Lawyers – EVERY MOVE MATTERS!