Last month, Australian courts overturned a record defamation payout to actress Rebel Wilson for a series of junk stories published about her. The end result hurts us all, write Hannah Marshall and Danielle Kroon from Marque Lawyers.
Rebel Wilson’s defamation suit is not actually about Rebel Wilson. It’s about what claptrap the tabloids, and by association the press generally, can get away with publishing.
At trial, when Wilson won the biggest defamation damages award in Australian history, the judge made some damning findings about Bauer Media, which published the defamatory stories.
He said that Bauer knew the stories were false. They did it to ‘maximise commercial opportunities’ (translation: to make more money), and as part of a campaign to take down Wilson. Oh yeah, there were also the insulting and harassing messages sent to Wilson’s family.
When Wilson won it was a big deal. The press was, frankly, crapping itself. Bauer appealed the damages award. It had to, because of the broader implications of the case. Of the $4.5m in damages, $3.9m related to income that Wilson allegedly lost out on because of the publications. But lost income, lost profit, (economic loss in the biz) are amorphous concepts because they involve hypothesising about what might have happened were the defamation not published.
What happens tomorrow is to do with the losers @bauermedia quibbling about how much they now have to pay me. While this case was never about the money for me, I do hope to receive as much as possible to give away to charities and to support the Australian film industry.
— Rebel Wilson (@RebelWilson) June 13, 2018
For the press, the issue was how much (or little) Wilson had to prove to get that massive damages award. It wasn’t much. The trial judge took a few facts, applied some inferences and this thing called the ‘grapevine effect’, and out popped $3.9m.
Bauer appealed. A bunch of other publishers tried to join in because they were all worried about the precedent. The court wouldn’t let them though; it said that Bauer would make the same arguments as them. So a lot rested on Bauer’s shoulders.
On appeal the whole $3.9m was overturned. And the other $650k for hurt feelings and damaged reputation was reduced to $600k.
Bauer won because the appeal court said that Wilson hadn’t sufficiently proved that she suffered financial loss because of the defamation. There were too many gaps or problems with the evidence to infer that Wilson had lost an opportunity to work on films and make money because of the articles.
For example, nobody could identify any actual role that Wilson wasn’t offered because of the articles. Her own agent didn’t know about the articles. Any coverage of the story in the US was limited in duration. And there was no suggestion that the success of her then-current film Pitch Perfect 2 was affected by the articles.
The court also took a detailed look at her career and earnings, and found that the first judge had overstated her success. It seemed important that even her highest paying role had not made her as much as she was claiming for a lost movie opportunity.
A key part of the story is this thing called the ‘grapevine effect’. It’s basically an assumption that damage is more widespread than you can actually know, because of the internet, social media, and all that jazz. The damages award should be big enough that anyone who ‘hears it on the grapevine’ realises that the story is baseless.
It is obviously hard to prove the extent of this. The trial judge said that the grapevine effect in the US was the cause of Wilson losing out on movie roles (and money). This part of the judgment gave the press nightmares. Wilson won megabucks on the basis of circumstantial evidence and an assumption that the publications caused her to lose movie roles; not on the basis of proven publication and proven causation.
Fortunately for Bauer, the appeal court had a different view. The judges accepted the principle of the grapevine effect, but said that the evidence did not support the broad way that the trial judge had applied it. The evidence just didn’t support the conclusion.
The appeal court’s legal reasoning is good. Causation is an important legal principle and the trial judge really went a bit far tinkering with it.
But there’s still a big problem with this judgment; it’s just not a legal one. Bauer had behaved appallingly. They knew what they published was false and they did it to make more money. They also harassed Wilson’s family; the court described it as a campaign to take her down.
Now Bauer’s ended up with a $600k damages award, and a hefty costs award in its favour. Wilson could easily end up out of pocket by the time she’s paid Bauer’s costs. And that’s the problem. Consequences, or a complete lack thereof, for Bauer knowingly publishing a complete work of fiction. $600k is actually huge in defamation terms. Normally the maximum non-financial damages award is about $380k. But as a deterrent, it’s flipping useless.
Perhaps more importantly, Wilson won the principle but lost the war. For other celebrities contemplating taking on the mags over their habit of publishing made-up stories, the message is clear: are you mad? There’s the real deterrent.
The winners? Obviously the press (except for their fact-checkers – you’re all fired). The losers? Not just the people defamed, but the whole public. We all lose when the press isn’t held to account for the “facts” it publishes.
Wilson – who promised to donate her payout to charity (and to support the Australian film industry) has her own take on it as well.
That’s now $4 million less going to less fortunate Australians and leaves a billionaire corporation, proven guilty of malicious defamation, being able to get away with their seriously harmful acts for a very low pay day! Clearly not fair. Come on Australia
— Rebel Wilson (@RebelWilson) June 14, 2018
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