Defamation in Depth – A study into the largest defamation payout in Australia

Defamation and the Nationwide News Pty v Rush (2018) 

An exploration into the “largest defamation payout to a single person in Australia”  

Defamation law is pivotal for any journalist, publisher, or media advisor to understand, in order to produce appropriate public content.  The law of defamation helps clarify the balance between the author’s rights to freedom of speech and the subject’s right to privacy. In an age of rapid technological innovation, the boundaries are continually pushed by professional communicators, as the values and the ethics of the audience constantly evolve. We explore this legal issue further, in relation to the Nationwide News Pty vs Rush case (2018), which leaves well-known, Oscar winning actor Geoffrey Rush with a surplus of $2.9 million dollars. 

What is defamation? 

Defamation is the communication of an untrue statement about an individual or company that unfairly damages their reputation. The act of defamation can be conducted in two ways; libel (written) or slander (spoken). Individuals that are accused of defamation in court are commonly of the occupation of publishers, broadcasters or have a relation to media. Material can be considered defamatory if it consists of any accusations that can be perceived as ridicule, detestation or if the aim is clearly to intentionally lower the reputation of an individual. Defamation can be identified as either a civil or criminal offence, assessed in a case by case situation. 

Under the Defamation Act 2005 (NSW), there are three components that must be included in libel or slander material to identify it as defamatory and a Civil Offence; Publication, Identification and Defamatory Material. Alternatively, under section 529(3) of the Crimes Act 1900 (NSW), defamation can be considered a criminal offence if an individual publishes material that is defamatory of the proclaimed victim, full well knowing that the matter is false or causing intentional harm to the victim.  Although the subject of the content can sue the publisher for defamation, a list of statutory defences exist which provide an excuse for such material, allowing potential for the claim to be declined.  

Some of the main defences against defamation claims are as follows: 

  • The material is honest opinion, as opposed to fact 
  • The material is obligatory for a range of reasons, such as legal, social or moral 
  • The material is of public concern  

The Case in Relation to Defamation – Allegations 

In the matter of Nationwide News Pty v Rush (2018) in the Federal Court of Australia, Actor Geoffrey Rush was awarded $2.9 million for a defamatory news report that was published with the “allegations of inappropriate behaviour in the theatre.” It was determined in the court that journalist, Jonathon Moran published unsubstantiated stories”, claiming the actor “deliberately ran his fingers over her right breast” as well as “groping and licking his lips during play rehearsals”. Expectedly, Rush vigorously denied the claims, with supporting documents claiming that the actor would touch the victim “on the face and arm in the manner of a grieving father.” 

The journalist’s language was mostly definitive however, the article wrongly portrayed the 67 year old as a  pervert” and “sexual predator”. It is the responsibility of professional communicators to examine their material, ensuring that the public content cannot be labelled as defamatory. If there is potential that the article may be considered as such, defences should be explored.  The writer is expected to produce content through a modality of language that matches the evidence and facts in which are available at the time of publication. If declarations have been proven by first or third person parties, it would be appropriate for the writer to use definitive language, as they would be reporting on factual information. If a journalist is writing about an alleged scenario, writing in the way of suggestion or suspicion should be used, to notify the public of the ostensible story.  In the matter of Nationwide News Pty vs Rush, the language used was easily misconstrued, through making claims and quoting the subject without legitimate factual information.  

What is the importance of this? 

Published material within the media often has the potential to be misconstrued, so it is important for both professional communicators and the responder to be aware that information is not always factual and there is the potential for serious consequences for unjust accusations. Journalists hold the power to release information (true or false), that can lead to an unworthy loss of an individual’s reputation, decline in mental health and unprecedented stress. Media advisors must constantly be aware of the language that is considered inappropriate, as particular terms can be considered as invasive, potentially resulting in being determined a Civil or Criminal Offence. 

Actor Geoffrey Rush and Eryn Jean Norvill (alleged), practicing a scene of King Lear at the Sydney Theatre Company in 2015. 

The Case in Relation to Defamation – Time and Acknowledgements 

Section 14B of the Limitations Act 1969 (NSW) states that a defamation claim must be actioned within one year of publication however section 56A(2) of the Crimes Act 1900 (NSW) permits the court to have the claim extended to three years if the circumstances can be identified as unreasonable and unrealistic to have commenced within the first time frame. The Geoffrey Rush article was published on 30 November 2017, accusing the actor of inappropriate behaviour in the midst of a theatre production of the tragedy ’King Lear’. In December 2017, Rush acknowledged the article and denied the claim, as well as making an announcement that he was taking to Court, to sue Nationwide News and the publisher, Jonathon Moran. In February 2018, the NSW Federal Court had the case’s first management hearings, beginning the process in which Rush decided to undertake, to defend his name and ultimately prove his innocence, with the aim to sue the company for their false accusations.  

Why is this important to know? 

Published material can be identified as defamatory long after the date of release, leaving it essentially indefensible as it was not acknowledged in the time frames that are outlined in the Limitations Act 1969 or Crimes Act 1900. The timing of the identification of potential defamatory material is vital, as it determines whether the public pieces of writing can be legally proclaimed as defamatory. This is important as a delay in claim or perhaps complete disregard of public material allows the Journalist to escape punishment for unethical work. Although defences may be in place to protect the article, the subject of the publication should act promptly to reap any rewards that they may be granted, as well as have the false claims publicly denied or appropriate actions taken.   

Oscar-winning Actor, Geoffrey Rush winning the defamation case against The Daily Telegraph. 

Marketing and Ethics in relation to Defamation 

The nature of marketing hosts capacity for controversial topics to be displayed, reinforcing the importance of understanding Australia’s defamation laws. Writers can minimise the risk of defamation lawsuits by being aware of the environment in which they are conducting material, using language of opinion (to comply with the defence of honest opinion), acting ethically through understanding the individuals or companies that are involved in the story or article. Reporters must not publish words, images or other media that shuns an individual, and must always be factually precise in their language. 

Results of the Claim 

In summary, the Nationwide News Pty v Rush (2018) had the following outcomes: 

  • Geoffrey Rush received the highest Defamation damages to an individual in Australian history (2.9 million dollars) 
  • The Daily Telegraph forced to take the article down from public platforms 
  • Geoffrey Rush’s reputation was restored  

References  

Pearson, M, Polden, M. 2014. The Journalist’s Guide to Media Law: A handbook for communicators in the digital world. 5th Edition. Allen & Unwin. Crows Nest NSW.  

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