FEDERAL COURT OF AUSTRALIA

Molan v Dailymail.com Australia Pty Ltd [2022] FCA 1004

ORDERS

THE COURT ORDERS THAT:

1.    Judgment be entered for the applicant in respect of the first five imputations arising from the online article published by the respondent on 5 June 2020.

2.    The respondent pay the applicant $150,000 plus interest at half the pre-judgment rate of interest as at the time of judgment, within 28 days.

3.    The applicant have leave to press the application for an injunction contained in the originating application dated 14 September 2020 by way of an email and draft agreed or competing procedural orders sent to the associate to Justice Bromwich within 14 days, or such further time as may be allowed.

4.    The parties have leave to make any application to vary these orders, or for costs, by way of an email and draft agreed or competing procedural and any other orders sent to the associate to Justice Bromwich within 14 days, or such further time as may be allowed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J:

INTRODUCTION

1    The applicant, Ms Erin Molan, is a seasoned media personality with a long working history as a sports presenter and commentator. Ms Molan sues the publisher of an online newspaper, Dailymail.com Australia Pty Ltd, in relation to an article published on 5 June 2020 (5 June online article). That article was based upon a very small segment of what she said as a co-host of the Continuous Call Team program on Sydney radio station 2GB (Radio 2GB) on 30 May 2020, during the course of the usual lengthy Saturday afternoon broadcast.

2    In addition to the 5 June online article, Dailymail.com also published two tweets about the same short segment of the same radio program. Those tweets were published on 5 June 2020 (5 June tweet) and the next day, 6 June 2020 (6 June tweet). Ms Molan also sues upon those tweets on the basis of them repeating the substance of one of the imputations said to arise from the 5 June online article.

3    The Continuous Call Team program involves commentary on and about the National Rugby League (NRL) competition, its participants, and those directly or indirectly associated with that competition. The program also routinely strays into topics that have nothing to do with rugby league, such as cooking, movies, and general gossip. Benignly described, it is a free-wheeling entertainment program that includes banter and laughter on the part of the hosts. It is characterised by Ms Molan’s senior counsel as light-hearted, irreverent and silly, with an absence of both malice and seriousness. Dailymail.com casts the program in a less benign way as calculated to appeal in several respects to base aspects of its audience’s prejudices, including racism. Unfortunately, there may be overlap between what some members of the public might find entertaining, and statements or behaviours which might be racist or otherwise offensive, which means that these characterisations may co-exist at least some of the time.

4    The particular version of the Continuous Call Team program in issue was broadcast live on Radio 2GB on 30 May 2020 over a period of some four hours. A segment of that program of some 14 seconds duration gave rise to the three publications that are sued upon.

5    Dailymail.com denies that any of the pleaded imputations were conveyed. In the alternative, it asserts that none of them are defamatory, and in the further alternative seeks to justify them by defences of truth and contextual truth as to all of the publications (but not all of the imputations), and by honest opinion as to the 5 June online article and the 6 June tweet. The defence of honest opinion is the subject of a defeasance reply claim by Ms Molan. Only the imputations that are sustained require a consideration of the defences advanced.

6    As will be seen, each side has had a measure of success and a measure of failure in that only some imputations have been sustained. Each imputation that has been sustained has been found to be defamatory and for those imputations the defences advanced have only been successful to a very limited extent. What ultimately matters is that Ms Molan has succeeded in establishing that she has been defamed in particular respects that are unjustified. She is therefore entitled to a measure of damages to correct the damage to her reputation, to compensate in a limited way for hurt feelings, and to vindicate her.

7    Ms Molan relies upon her own affidavit and oral evidence, and the evidence of several other witnesses, in addition to documentary evidence. No witness evidence was adduced by Dailymail.com. The journalists involved in the publications did not give evidence in support of what they have written. Dailymail.com relies solely upon documentary evidence in its own case and challenges aspects of the evidence advanced against it, including by cross-examination of Ms Molan. It follows that there was no need to resolve any conflicts between oral testimony.

8    In the result, much of the evidence adduced did not need to be considered because it was directed to the substantial truth of the most serious pleaded imputation, being that Ms Molan is a racist, which I have found was not conveyed. The relevant evidence that remained has been considered at the points at which it was relevant, rather than in a detailed and separate narrative.

AGREED BACKGROUND FACTS

9    The parties cooperated by furnishing a statement of agreed background facts, and a statement of agreed factual and legal issues. The key aspects of what has been agreed are as follows, supplemented at [13] by the segment of the broadcast on 30 May 2020 that is the subject of the three publications sued upon, and also supplemented by the addition of the words of the two texts that it is agreed were sent and are in evidence.

10    At the time of the publication of the 5 June online article, the 5 June tweet and the 6 June tweet, Ms Molan was a sports presenter and commentator employed by Nine Entertainment Co Holdings Limited. In that role, among other things, she was part of the Nine Network's Wide World of Sports team for their NRL coverage and one of the hosts of the Continuous Call Team program on Radio 2GB.

11    Dailymail.com has been at all material times the publisher of material on its website with the URL https://www.dailymail.co.uk/auhome/index.html (Daily Mail Australia Website) and material published to Twitter using the account with Twitter handle @DailyMailAU (Daily Mail Twitter Account).

12    The following subset of Continuous Call Team program broadcasts involving Ms Molan took place on Radio 2GB between March 2017 and May 2020:

13    The thrust of the 5 June online article deals with Ms Molan, according to that article, attempting the pronunciation of a Pacific Islander player’s name in the course of the following exchange during the Continuous Call Team program broadcast on 30 May 2020, a characterisation that is disputed. This segment and some contextual material demonstrating the nature of the program was played in open court. The following excerpt includes a few seconds or so more than the 14 seconds played in court, by including slightly more from the beginning and end of the transcribed segment for additional context:

Mark Levy:    … Chris [Warren], he’ll be sitting there getting ready for the football and running through all the pronunciations like he does …

Erin Molan:    Dad

Mark Levy:    … on a regular basis

Erin Molan:    Dad

Erin Molan:    Hooka, Looka, Mooka, Hooka, Fooka

Darryl Brohman:    What? I’m not sure what you said then.

Erin Molan:    What was the name you had to check? …

The 5 June online article describes Mr Brohman’s response to have been “What? I’m not sure what she said there” but upon reviewing the recording, I consider the above to be a more accurate transcription of what was said.

14    On 4 June 2020:

(a)    Ms Molan and Mr Nic White of Dailymail.com exchanged a series of text messages relating to the 30 May 2020 broadcast.

(b)    Mr White exchanged emails with Mr Evans of Radio 2GB relating to the 30 May 2020 broadcast.

15    At about 8.30pm on 4 June 2020, Dailymail.com published an article about Ms Molan on the Daily Mail Australia Website, titled “Erin Molan denies mocking the names of Pacific Islanders on live radio and claims her ‘hooka looka’ jibe was an 'inside joke' between her co­ hosts – but NONE of them are laughing”. That article is not sued upon.

16    On 5 June 2020, Dailymail.com published an article about Ms Molan on the Daily Mail Australia Website, titled “Erin Molan refuses to apologise for her ‘hooka looka mooka’ jibe on live radio – as Pacific Islander women slam her for being 'complicit in racism' by mocking their names”. This 5 June online article is the first matter complained of. A printed version of the 5 June online article appears as Schedules A1 and A2 to the amended statement of claim. Schedule A2 includes an additional link to the 5 April 2020 broadcast.

17    The number of Australian unique visitors for the first matter complained of (that is, people apparently from Australia who accessed the 5 June online article) up to 23 October 2020 was 59,543.

18    The 5 June online article has remained accessible online since 5 June 2020.

19    On 5 June 2020, at about 1.03pm, Ms Zoe Zaczek of Dailymail.com sent a text message to Ms Molan:

Hi Erin,

My name is Zoe and I’m a news reporter for Daily Mail Australia. I am writing a follow – up on yesterday’s story. There has been quite a bit of backlash over the audio, with many labelling it ‘racist’. Would you be willing to comment on the allegations of racism? Are you going to apologise?

Cheers,

Zoe

20    On 5 June 2020, at about 4.42 pm, Ms Molan took part in a broadcast with Mr Levy on Radio 2GB [the Drive Show], during which the following words were broadcast:

Mr Levy:    Now Erin, we've worked together for many, many years and the Continuous Call team of a Saturday and Sunday is predicated on having some fun and sitting around with some mates and having a laugh but there were some comments on the weekend that today have caused a bit of a stir.

Ms Molan:    Yeah they have, haven’t they Levy, which is never a good thing. Look, as you said, and you know me very well, I would never, ever intentionally offend anybody or hurt anyone’s feelings and if I’ve done that then I am very, very sorry for it. You know, we love to have a laugh and we love to have fun but in the current climate [you know] things are very different. So I’ll see you tomorrow, my friend, and we’ll hopefully try to have some fun of a different nature.

21    I interrupt this narrative to note that I have, as urged by Ms Molan’s senior counsel, listened to the sound recording of the above and accept the submission that the apology given by Ms Molan was sincere. As discussed in some detail in these reasons, this recording is of some importance because all three publications sued upon allege that she refused to apologise, rather than taking issue with the scope or content of the apology that was broadcast. The recording, by her saying with apparent sincerity that she did not intend to offend, necessarily corroborates her contention that she did not, as also alleged about the 30 May 2020 broadcast, intend to mock anyone other than perhaps the well-known father and son rugby league commentators in fact being referenced in the impugned segment, Ray Warren and Chris Warren, and therefore did not deliberately mock Pacific Islanders. While it is difficult to see how mocking could be other than deliberate, the word “deliberately” serves to emphasise this.

22    On 5 June 2020, Dailymail.com posted material on the Daily Mail Twitter Account about Ms Molan on the Daily Mail Australia Website comprising the 5 June tweet, which is the second matter complained of. A printed version of the 5 June tweet appears as Schedule B to the amended statement of claim.

23    On 6 June 2020, Dailymail.com posted material on the Daily Mail Twitter Account about Ms Molan on the Daily Mail Australia Website comprising the 6 June tweet, being the third matter complained of. A printed version of the 6 June tweet appears as Schedule C to the amended statement of claim.

24    The number of people who followed the Daily Mail Twitter account as at 5 and 6 June 2020 was about 24,400.

25    On 10 June 2020 the applicant tweeted a statement to her Twitter followers, which numbered over 95,000.

26    NRL players having a Polynesian heritage represent a significant proportion of players in the NRL competition.

27    Ms Molan said the words “Hooka, Looka, Mooka, Hooka, Fooka” on the radio whilst hosting the Continuous Call Team on 2GB on 30 May 2020 shortly after the death of George Floyd in police custody.

28    On or about 3 June 2020, Ms Molan put a post on Instagram concerning George Floyd.

29    Ms Molan was a host of The Footy Show, a television program broadcast by the Nine Television Network during the period from about 2014 to 2018.

THE THREE MATTERS COMPLAINED OF, THE PLEADED IMPUTATIONS AND PUBLICATION

30    It is convenient to turn now to the three publications comprising the matters complained of (prefaced by the 4 June 2020 online article that is not sued upon), the pleaded imputations, and whether, objectively, those imputations are conveyed. The outcome of that process determines what remains to be considered.

4 June online article – not sued upon

31    As noted above, on 4 June 2020, the Dailymail.com published an online article, which is not sued upon. It apparently provoked some of the responses that were published as additional material in the 5 June online article published the next day that is sued upon, and is a subset of that article. A printed copy of that article is Annexure A to these reasons because of the important context it provides to the three publications that are sued upon. Although the way in which this article should be considered as the precursor to the 5 June online article is disputed, it undoubtedly was causally related to the additional material in that later article, including the particular aspects sued upon.

First matter complained of: 5 June online article

32    The thrust of the 5 June online article deals with Ms Molan, according to that article, attempting the pronunciation of a Pacific Islander player’s name in the course of the following exchange during the Continuous Call Team program broadcast on 30 May 2020. This segment and some contextual material demonstrating the nature of the program was played in open court. The following excerpt includes one second more than the 14 seconds played, by including more from the beginning and end of the transcribed segment for additional context:

Mark Levy:    … Chris [Warren], he’ll be sitting there getting ready for the football and running through all the pronunciations like he does …

Erin Molan:    Dad

Mark Levy:    … on a regular basis

Erin Molan:    Dad

Erin Molan:    Hooka, Looka, Mooka, Hooka, Fooka

Darryl Brohman:    What? I’m not sure what you said then.

Erin Molan:    What was the name you had to check? …

33    This proceeding principally turns on Ms Molan’s use of the words “Hooka, Looka, Mooka, Hooka, Fooka”. The 5 June online article includes adverse reactions to what she was perceived to have said and done by using those words, as reported in the 4 June online article. The 5 June online article included comments reported to have been made by Dr Jemaima Tiatia-Seath, a Pacific Islander academic in New Zealand; by Ms Talia Aualiitia, a Pacific Islander presenter on the Australian Broadcasting Corporation’s Radio Australia; by others apparently from the Pacific Islander community in Australia; and by other members of the public. The evidence in relation to the segment and its historical context has revealed that the perception conveyed by the 4 June online article was not an entirely accurate reflection of what had in fact taken place when regard was had to context and events prior to that publication. This matter was brought to the attention of Dailymail.com both by text from Ms Molan and by email from a Nine Publicist, Mr Jason Evans, before publication took place.

34    The 5 June online article published on Dailymail.com’s website is best viewed, in the first instance, in its printed format rather than by way of a summary or reproduction of the text alone. That is because a summary or the text alone does not properly enable the Court to do justice to the competing arguments. A summary or text alone tends to decontextualise what was published as to accompanying images, captions, reproduced tweets and a link to the 14 second segment.

35    Annexure B to these reasons is Schedule A2 to the amended statement of claim. The statement of claim originally only included Schedule A as the first matter complained of. That was renumbered Schedule A1 and Schedule A2 was added without dispute when the amended statement of claim dated 13 October 2021 was prepared, and leave was granted to amend the statement of claim. The only significant difference between Schedules A1 and A2 is that Schedule A2 includes, between the line numbering added [40] and [41], an embedded link to play audio from the Continuous Call Team program on 5 April 2020, which corresponds to the transcript for Particular (v) of Dailymail.com’s defence.

36    It must still be kept steadily in mind that the printed version of the 5 June online article is not a precise or even necessarily very accurate representation of what a reader would observe reading or perusing the online article on a computer screen, tablet or mobile telephone handset, each such viewing in turn being likely to be affected by the size of the screen and the settings used on such a device by the individual user.

37    Ms Molan points to particular features of the 5 June online article as comprising a headline and four summary bullet points, followed by a description of the 14 second segment of the 30 May 2020 broadcast (including certain background to that broadcast segment attributed in part to her and to her employer as the ultimate owner of 2GB), statements attributed to Dr Tiatia-Seath, a link to an audio recording of that segment of the broadcast with a caption, matters related to the death of George Floyd, including an Instagram post attributed to Ms Molan about that murder, tweets attributed to Ms Talia Aualiitia, various tweets attributed to other people, the background of certain NRL players, claims about her racial comments about a musical group and photographs of her.

38    For ease of reference, the text alone of the 5 June online article (identical as between Schedule A2, but with an additional link in the latter inserted between [40] and [41]) is as follows, retaining the line or paragraph numbers inserted into the copy annexed to the amended statement of claim for ease of reference:

[1]    Erin Molan refuses to apologise for her ‘hooka looka mooka’ jibe on live radio – as Pacific Islander women slam her for being ‘complicit in racism’ by mocking their names

[2]    • Erin Molan has been slammed after offensive outburst on Radio 2GB’s NRL show

        • Panel was discussing pronouncing NRL player names during broadcasts

        • The 36-year-old put on an accent and said ‘hooka looka mooka hooka fooka’

        • She claimed it was a reference to a story previously told on the show in April

[3]    By Zoe Zacek and Nic White for Daily Mail Australia Published: 13:34 AEST, 5 June 2020 | UPDATED: 15:12 AEST, 5 June 2020

[4]    Erin Molan has been accused of being ‘complicit to racism’ by mocking the names of Pacific Islander NRL players on radio.

[5]    Molan, 36, put on on accent as she said ‘hooka looka mooka hooka fooka’ during a discussion about how to pronounce players’ names before a game on Saturday’s ‘Continuous Call’ football show on 2GB.

[6]    Molan claimed the statement was an ‘in-joke’ between the commentators – despite fellow hosts Darryl Brohman and Mark Levy remaining silent after her comments.

[7]    ‘What? I’m not sure what she said there,’ a confused Brohman said about Molan’s comments, before Levy quickly moved on to an unrelated topic.

[8]    However, Jemaima Tiatia-Seath, the co-head of the University of Auckland’s Māori Studies and Pacific Studies department, said Molan’s ‘hooka looka mooka fooka’ jibe should not be excused as a joke.

[9]    She said commentators not being able to pronounce the names of Polynesians – who now represent about 45 per cent of players in the National Rugby League competition – was unacceptable.

[10]    ‘It is the role of any commentator to owe respect to a name,’ Dr Tiatia-Seath told Daily Mail Australia.

[11]    ‘To some it was “only just a joke, don't take yourself too seriously”' but to us, it’s a sign of disrespect.

[12]    ‘The fact that it was joked about in the public sphere, it shows we have a long way to go in changing attitudes and beliefs. It’s being complicit towards racism. Enough is enough.’

[13]    [IMAGE OF ERIN MOLAN AND MARK LEVY WEARING HEADPHONES]

[14]    Erin Molan (pictured left) appeared to mock the names of Pacific Islander NRL players live on 2GB radio’s The Continuous Call on Saturday

[15]    Erin Molan mocks the names of Pacific Islanders live on radio

[IMAGE OF ERIN MOLAN AND FOUR MEN HEADED “THE CONTINUOUS CALL TEAM”, WITH A LINK TO AN EMBEDDED 14 SECOND VIDEO MARKED “Watch the full video”]

[16]    Dr Tiatia-Seath added an individual’s name carries ‘Mana’, which is regarded as a spiritual force to Polynesian people.

[17]    ‘In a name, an individual carries with them their family, their histories, and their memories,’ she said.

[18]    Molan faced backlash on Twitter for her comments, which come at a time of heightened awareness about race and inequality following the death George Floyd, a 46-year-old black man, in Minneapolis police custody.

[19]    His death has led to series of Black Lives Matter protests across the U.S. and the globe.

[20]    [IMAGE OF JEMAIMA TIATIA-SEATH]

[21]    Jemaima Tiatia-Seath (pictured), from the school of Māori Studies and Pacific Studies at the University of Auckland, said Molan’s mispronunciation could not be excused as a joke. ‘To some “it was only just a joke, don't take yourself too seriously”' but to us it's a sign of disrespect,’ she told Daily Mail Australia

[22]    [IMAGE OF TALI AUALIITIA]

[23]    ABC Radio Australia presenter Tali Aualiitia also criticised Molan for her ‘white privilege’

[24]    [IMAGE OF A THREAD OF THREE TWEETS FROM TALI AUALIITIA] with the following text:

“Erin Molan works in rugby league and, there are a bloody lot of Pacific players. It’s literally her job to say these names and, to do the work to same [sic] them right”

“What she fails to understand, is that a Pacific name is not just a surname. It’s your ancestors, your village, your people, your country. We wear our names with pride and they are there to be made a mockery of – even as a joke with your co-worker”

“Respect people’s names. It’s not that bloody hard. And, it’s not just Pacific names. Respect all names. Do the work to try and get them right. Especially if you work in the media because it’s literally your bloody job”

[25]    ‘It’s literally her [Molan’s] job to say these names,’ Aualiitia wrote in a Twitter thread

[26]    [IMAGE OF A TWEET FROM SCOTTY STEVENSON] with the text “Family names throughout the pacific tell stories, carry memories, and hold histories. They’re not jokes.” to a nzherald tweet stating that “NRL personality and commentator Erin Molan has refuted claims that she mocked the names of Pacific Island players in a live radio slip up”

[27]    Journalist Scotty Stevenson also criticised Molan for mocking players’ names

[28]    One Twitter user wrote: ‘Don't post an Instagram story for George Floyd but then go and mock Pacific Islanders names.

[29]    ‘YOU ARE THE PROBLEM BABE. False morality.’

[30]    ABC Radio Australia presenter Tali Aualiitia also criticised Molan for her ‘white privilege’.

[31]    ‘Erin Molan works in rugby league and there are a bloody lot of Pacific players. It’s literally her job to say these names and, to do the work to same them right,’ she wrote.

[32]    ‘What she fails to understand, is that a Pacific name is not just a surname.

[33]    ‘It’s your ancestors, your village, your people, your country. We wear our names with pride and they are not there to be made a mockery of – even as a joke with your coworker.’

[34]    [IMAGE OF TWEETS FROM HARVEY SPECTER AND FROM TOMMY STUCKY] with the text “Okay first you kill off the footy show single handedly now you pull this bs [short hand for bullshit] [face palm emoji] don’t try to sweep it under the rug own up to it and apologise @Erin_Molan”

“#NoToRacism”

[35]    Molan was slammed on Twitter after the story was published on Thursday

[36]    Another Twitter user described Molan's mispronunciation as ‘peak white privilege’.

[37]    ‘Women like Erin Molan like to use their proximity to Brown bodies specifically Brown NRL bodies as an excuse to joke ‘with’ us ... no,’ they wrote.

[38]    ‘You don't get to make fun of our names and pretend its all in good fun. Not now not ever.

[39]    ‘It's f***ing 2020 and if you're not doing better now you shouldn’t be doing it at all. Peak white privilege.’

[40]    Daily Mail Australia has attempted to contact Molan and Nine Entertainment to ask whether she would apologise.

[IMAGE OF ERIN MOLAN AND FOUR MEN HEADED “THE CONTINUOUS CALL TEAM”, WITH A LINK TO AN EMBEDDED 2:02 MINUTE VIDEO MARKED “Watch the full video”]

[41]    When contacted about the audio on Thursday, Molan said she had ‘no idea’ why no-one laughed, and suggested they were distracted by the busy studio.

[42]    Both Nine Entertainment, owner of 2GB, and Molan herself said she was referencing a story Brohman told on an April 5 broadcast, about a debate between father and son commentators, Ray and Chris Warren.

[43]    The pair were debating how to pronounce the name of reserve Manly forward of Tongan decent, Haumole Olakau’atu.

[44]    ‘His name had about 30 letters in it and I had trouble pronouncing it so I asked Chris ‘how do you pronounce this bloke’s name?’ Brohman said.

[45]    ‘He said ‘well dad and I have been discussing this today... and dad thought his name was Chuka-lala-lulu.

[46]    ‘And I said, ‘well, dad, I think it’s Chuka-lala-lulu-lulu, and he says, Chris, that's incorrect – It’s Chukaka-lulalulalo’.

[47]    [IMAGE OF ERIN MOLAN]

[48]    Molan is pictured at the Dally M Awards in Sydney in 2018

[49]    The story continued along those with the names getting increasingly complicated until Brohman suggested ‘let's just call him Sevi’.

[50]    Brohman relayed the story in a voice that mocked the speech of both Ray and Chris Warren, which Molan said she imitated on Saturday.

[51]    He appeared to be exaggerating a serious discussion between the Warrens for comedic value and not recounting it word for word.

[52]    On Saturday, Levy said Warren would ‘run through all the pronunciations’ of players before Saturday night's match.

[53]    Molan then interjected by twice saying ‘Dad!’ in a strange voice, before launching into the nonsensical phrase.

[54]    Nine told Daily Mail Australia any perceived racial insensitivity was a misunderstanding as Molan was just referencing a story regular listeners would be familiar with.

[55]    [IMAGE OF ERIN MOLAN’S INSTAGRAM POST WITH EMOJIS, THE WORDS “I understand that I will never understand. However I stand with you.’ AND AN IMAGE OF A BLACK HAND AND A WHITE HAND INTERTWINED]

[56]    ] Molan on Wednesday night made an Instagram in solidarity with the protests over George Floyd’s death, showing white and black hands intertwined

[57]    ‘Erin was was jokingly mocking the difficulty Chris and his father had, going back and forth figuring out how to pronounce a complex name,’ it said.

[58]    ‘The Big Marn (Brohman) retelling the story in his very best Ray and Chris Warren voice.’

[59]    Molan's repeated interjections of ‘Dad!’ were referring to this dynamic, Nine said.

[60]    Molan on Wednesday night made an Instagram post in solidarity with the protests over George Floyd’s death, showing white and black hands intertwined.

[61]    ‘I understand that I will never understand. However, I stand with you,’ her caption stated.

[62]    Forty-five per cent of NRL players have Pacific Island heritage, swelling from 30 per cent in 2011.

[63]    League players come from 116 different countries, and have family ties to 145 through their parents and grandparents.

[64]    [IMAGE OF ERIN MOLAN]

[65]    Molan said she had ‘no idea’ why no-one laughed, and suggested they were distracted by the busy studio

[66]    This is not the first time Molan has used questionable dialogue during a broadcast.

[67]    On TV show, 20-to-One, she was widely condemned for mocking K-Pop group BTS.

[68]    Molan expressed surprise at the group’s chart-topping success in America, because ‘only one band member actually speaks English’.

[69]    She and co-host Nick Cody took things even further by mocking the group's work with the United Nations Children's Fund (UNICEF).

[70]    While playing a clip of BTS discussing their philanthropic work in a speech to the UN last year, the pair remarked that they must have been speaking about ‘hair products’.

39    The asserted background or context for this segment, as provided by email by the radio program to Dailymail.com at 5.25 pm on 4 June 2020, prior to the publication of the 5 June online article, is as follows:

Hi Nic,

Nic C passed on the below, I look after the NRL publicity at Nine.

Below all for background only for you and not for direct quoting, but this appears to be a misunderstanding – the context for that segment links back to this – https://www.2gb.com/history-made-as-chris-and-ray-warren-go-headto-head/

I’ve asked our team at 2GB to pull the audio for me when they can for you to hear, but it was just a story that regular listeners would be familiar with as it comes up often on the show.

It was an occasion last year where Ray Warren was calling a game for Nine and his son Chris was calling the same game for 2GB at Brookvale Oval.

Ray came into the 2GB box and father and son debated the pronunciation of Manly forward Haumole Olakau’atu off-air.

That’s why Erin says “Dad....Dad....” and then creates a fictional player name – she was jokingly mocking the difficulty Chris and his father had, going back and forth figuring out how to pronounce a complex name.

If you’d like any further context or the audio from the original story, just let me know.

40    The substance of Ms Molan’s case is that the Dailymail.com has distorted and misrepresented what she said in the 14 second segment so as defame her in the way of the following six imputations, each of which rely upon the whole of the 5 June online article, and also focus on specific paragraphs of that article for the first five imputations, as refined in her opening written submissions:

1st imputation:    The applicant, having deliberately mocked the names of Pacific Islanders on air, then lied about it by falsely claiming she was referring to an “in-joke” between her and her co-hosts on the commentary team.

2nd imputation:    The applicant is so callous that, having deliberately mocked the names of Pacific Islanders on air, she then refused to apologise despite the offence she had caused the Polynesian NRL community and their cultural history.

3rd imputation:    The applicant's inability to pronounce the names of Polynesian NRL players is so disrespectful and incompetent that she is unfit to be an NRL commentator.

4th imputation:    The applicant is such an arrogant woman of white privilege that she has refused not only to learn how to pronounce the names of Polynesian NRL players but also to apologise for deliberately mocking them on air.

5th imputation:    The applicant cynically used George Floyd’s death to promote herself as sympathetic to Black Lives Matter protests against racism and inequality even though she had deliberately mocked the names of Pacific Islanders on air.

6th imputation:    The applicant is a racist.

41    Thus, Ms Molan’s pleaded case for the article starts with the 1st imputation that follows relatively closely what was expressly stated, relying upon only a small measure of implication, and builds up to the concluding 6th imputation of her being “a racist”, being something that is never expressly said in the article. She therefore relies heavily upon the article carrying the implication not just that she has engaged in racist behaviour, but that she has that adverse personal characteristic.

42    By contrast, Dailymail.com’s case is run heavily on the justification for the last and most serious of these imputations, endeavouring to make the 6th imputation the issue in the proceeding, paying relatively less attention to the other more limited imputations. The strategy behind this is clear enough – if the 6th imputation is found to be conveyed, but is also found to be substantially true or contextually true, the scope for any damages arising from the first five imputations, if conveyed, is greatly reduced, if not eliminated.

43    As there cannot be defamation without publication, that is a necessary fact to be proved. In the case of the 5 June online article there is no dispute that this was published to readers, and I formally find that was so.

Second matter complained of: 5 June tweet

44    The second matter complained of, being the first tweet sued upon, published the same day as the principal online article on 5 June 2020, is also best viewed in its printed format. The same caveat applies as to how each tweet would be seen by a reader on the range of possible devices used to view it. For convenience, the version which is Schedule B to the amended statement of claim is Annexure C to these reasons, unaltered.

45    When the amended statement of claim was prepared, Ms Molan also sought to amend to include alternate versions of the second and third matter complained of which reflected the alternative formatting which could occur when viewing a tweet on a mobile device. These alternate formats were in fact tendered by the respondent as Exhibit 2R in the course of cross-examination of Ms Molan. Ms Molan sought to make this amendment on the basis that it was likely that more people would have viewed the tweets on a mobile device, being the format which was tendered by the respondent, than in the desktop formats which were annexed to the statement of claim. It emerged in the course of submissions in support of the amendment that the relevance or significance of the differences in the formats only became apparent in the course of the cross-examination of Ms Molan. However, counsel further submitted that it simply did not occur to either Ms Molan’s previous or current solicitors that there was a difference between the two formats when the statement of claim was lodged.

46    Conversely, Dailymail.com argued that owing to the significant difference in wording which appeared between the formats, where the desktop version had almost double the amount of text as the mobile version, that the alternate version of the tweets essentially constituted a different publication and should not now be allowed to be annexed to the statement of claim. Given that it unfortunately seemed to be nothing more than a mistake that the alternate versions were not put as matters complained of by Ms Molan initially, and the compelling argument by Dailymail.com about the material differences between the versions, I did not grant leave to amend the statement of claim in respect of the 5 June tweet (or in respect of 6 June tweet). In the end result, nothing turned on this outcome.

47    The image of the 5 June tweet is as follows:

48    Ms Molan pleads the following further imputation based on the 5 June tweet:

7th imputation:    The applicant is so callous that, having deliberately used an accent to mock the names of Pacific Islanders on air, she then refused to apologise.

49    The respondent puts the applicant to proof both as to the fact of publication of the 5 June tweet and as to the extent of such publication, noting the concession as to number of people who followed the Daily Mail Twitter account. Had it been necessary to do so, I would have found that publication did take place, leaving only the vexed question of the extent of publication because following an account is not necessarily the same as actually reading it so as to constitute publication. However, no concluded view is necessary because the firm conclusion I reach below is that the 7th imputation has not been established as having been conveyed. This is because two essential elements of the pleaded imputation were not conveyed. I note for completeness that, had that imputation been conveyed, there is no doubt that it would have been defamatory.

Third matter complained of: 6 June tweet

50    The third matter complained of, the 6 June tweet (being the second tweet sued upon and published the day after the 5 June online article and the 5 June tweet) is also best viewed in its printed format for the reasons already expressed above. Again, the same caveat applies as to how each tweet would be seen by a reader on the range of possible devices used to view it. Again, for convenience the version which is Schedule C to the amended statement of claim is Annexure D to these reasons, unaltered.

51    The image of the 6 June tweet is as follows:

52    Ms Molan pleads the following further imputation based on the 6 June tweet:

8th imputation:    The applicant is so callous that, having deliberately used an accent to mock the names of Pacific Islanders on air, she then refused to apologise.

53    Again, the respondent puts the applicant to proof both as to the fact of publication of the 6 June tweet and as to the extent of such publication, again noting the concession as to number of people who followed the Daily Mail Twitter account. Again, had it been necessary to do so, I would have found that publication did take place, leaving only the leaving only the vexed question of the extent of publication because, again, following an account is not necessarily the same as actually reading it so as to constitute publication. However, no concluded view is necessary, because the firm conclusion I reach below is that the 8th imputation has not been established as having been conveyed because an essential element was not conveyed. As with the other tweet, I note for completeness that had that imputation been conveyed there is no doubt that it would have been defamatory.

LEGAL PRINCIPLES AND KEY AUTHORITIES

Defamatory meaning and pleading imputations

54    Defamation occurs when “a publication, without justification or lawful excuse… [injures] the reputation of another, by exposing [them] to hatred, contempt or ridicule”: Parmiter v Coupland (1840) 151 ER 340 at 342. Defamation is carried through imputations which an ordinary reasonable reader would find were conveyed when applying their general knowledge and their knowledge of standards held by the general community: JWR Productions Australia Pty Ltd v Duncan-Watt (No 2) [2020] FCA 236; 377 ALR 467 at [387]. While these general statements seem to indicate a broad remit to seek relief for any number of matters, an applicant must take care in what they plead to have been conveyed to the ordinary reasonable person to vindicate the claim successfully.

55    In Hayson v The Age Company Pty Ltd (No 2) [2020] FCA 361, I observed:

[38]    The forensic choice in pleading imputations by a person bringing a proceeding for defamation may be a difficult one. If the direct assertions in a publication are pleaded as the imputations, there may be a danger that a successful defence will be able to be mounted, because that is what a publisher is most likely to have considered in framing the story by reference to the information available. Moreover, the direct assertions may not properly capture the real slur, or at least the more serious slur being conveyed by implication, such as guilt rather than mere suspicion of guilt. But the ever-present risk is that the implication relied upon, rather than the direct slur available to be relied upon, is not in fact there to be found. That is, if the bar set by the pleaded imputation is too high, it may not be successfully cleared.

[39]    The issue of the meaning conveyed to be determined arises out of the imputation alleged, not some other imputation that could have been pleaded, but was not: see Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; 271 FCR 632], especially at [31]-[32]; see also the advice of the Privy Council in Truth (New Zealand) Ltd v Holloway [1961] NZLR 22; [1960] 1 WLR 997, reproduced in the New Zealand Court of Appeal decision of Broadcasting Corporation of New Zealand v Crush [1988] 2 NZLR 234, and further reproduced in Chau at [73].

56    Of course, the publisher must also be careful as to what may be implied beyond what is expressly stated, with the exemplar expression of that danger being stated with clarity in the following much cited passage from Lord Devlin in Lewis v Daily Telegraph [1964] AC 234 at 277:

My Lords, the natural and ordinary meaning of words ought in theory to be the same for the lawyer as for the layman, because the lawyer’s first rule of construction is that words are to be given their natural and ordinary meaning as popularly understood. The proposition that ordinary words are the same for the lawyer as for the layman is as a matter of pure construction undoubtedly true. But it is very difficult to draw the line between pure construction and implication, and the layman’s capacity for implication is much greater than the lawyer’s. The lawyer’s rule is that the implication must be necessary as well as reasonable. The layman reads in an implication much more freely; and unfortunately, as the law of defamation has to take into account, is especially prone to do so when it is derogatory.

57    The topic was further considered by Lord Devlin in Lewis at 285:

It is not, therefore, correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded.

58    The concern at the stage of considering whether a pleaded imputation has been conveyed is not with what the person the subject of the publication actually did, but what they are said to have done. The meaning to be derived from the present three publications sued upon, and measured against the disputed imputations, is that of the hypothetical ordinary reasonable reader: Reader’s Digest Services Pty Ltd v Lamb [1982] HCA 4; 150 CLR 500 at 506. The High Court in Trkulja v Google LLC [2018] HCA 25; 263 CLR 149 observed at [31]-[32] (omitting footnotes):

The test for whether a published matter is capable of being defamatory is what ordinary reasonable people would understand by the matter complained of. In making that assessment, it is necessary to bear in mind that ordinary men and women have different temperaments and outlooks, degrees of education and life experience. As Lord Reid observed in Lewis v Daily Telegraph Ltd [[1964] AC 234 at 259], “[s]ome are unusually suspicious and some are unusually naive”. So also are some unusually well educated and sophisticated while others are deprived of the benefits of those advantages. The exercise is, therefore, one of attempting to envisage a mean or midpoint of temperaments and abilities and on that basis to decide the most damaging meaning that ordinary reasonable people at the midpoint could put on the impugned words or images considering the publication as a whole.

As the Court of Appeal of England and Wales observed in Berezovsky v Forbes Inc [[2001] EMLR 45 at 1040 [16]], that exercise is one in generosity not parsimony. The question is not what the allegedly defamatory words or images in fact say or depict but what a jury could reasonably think they convey to the ordinary reasonable person; and it is often a matter of first impression. The ordinary reasonable person is not a lawyer who examines the impugned publication over-zealously but someone who views the publication casually and is prone to a degree of loose thinking. He or she may be taken to “read between the lines in the light of his general knowledge and experience of worldly affairs”, but such a person also draws implications much more freely than a lawyer, especially derogatory implications, and takes into account emphasis given by conspicuous headlines or captions. Hence, as Kirby J observed in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 574 [134], “[w]here words have been used which are imprecise, ambiguous or loose, a very wide latitude will be ascribed to the ordinary person to draw imputations adverse to the subject”.

59    In Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 (Rush No 7), Wigney J summarised the burden of the authorities on the meaning of the ordinary reasonable person and the “natural and ordinary” meaning of a publication at [72]-[85]. In particular, his Honour observed, as to the approach towards comprehending how the hypothetical ordinary reasonable person reading the publication in question would derive the meaning:

[77]    … in determining what implications or imputations the ordinary reasonable reader would understand or draw from the words, the authorities suggest that the ordinary reasonable reader should generally be taken to approach or consider a publication in a particular way or ways. The ordinary reasonable reader is, for example, said not to be a lawyer who examines the publication overzealously, but rather someone who views the publication casually and is prone to a degree of “loose thinking”. The ordinary reasonable reader also apparently does not live in an “ivory tower” but can and does “read between the lines” in light of their general knowledge and experience of worldly affairs. While they do not search for hidden meanings or adopt strained or forced interpretations, they nevertheless draw implications, especially derogatory implications, more freely than a lawyer would. While they read the entire publication and consider the context as a whole, they take into account emphasis that may be given by conspicuous headlines or captions.

[78]    … the mode or manner of publication can be a relevant matter in determining what was conveyed to the ordinary reasonable reader. The ordinary reasonable reader of a book, for example, is likely to read it with more care than he or she would read an article in a newspaper, particularly if that article is sensational. The ordinary reasonable reader of such an article is more prone to engage in loose thinking. That is all the more so where the words which are published are imprecise, ambiguous, loose, fanciful or unusual.

60    If a publisher chooses to create news based upon something that has been discovered, rather than report carefully on an event which itself is already news, particular caution may be required to ensure that there has not been a mistake made, or something important has not been misunderstood. In this case, there was little room for any misunderstanding of the asserted background or context for the segment reported upon, because the radio program provided that information in writing to Dailymail.com prior to any publication taking place. Dailymail.com published with that risk firmly in place.

61    I am required to arrive at a single meaning, being the only natural and ordinary meaning conveyed by the words used in the publication: Slim v Daily Telegraph Ltd [1968] 2 QB 157 per Diplock LJ (as Lord Diplock then was) at 172-175. Lord Justice Diplock commenced his reasons at 171-172 by explaining evocatively both the artificiality, and the indispensability, of the single meaning rule:

In the spring of 1964 two short letters appeared in the correspondence columns of the “Daily Telegraph.” Written by Mr. Herbert, they formed part of a robust though desultory controversy about the prospective use by motor vehicles of a public footpath forming part of Upper Mall in Hammersmith. Neither letter can have taken a literate reader of that newspaper more than 60 seconds to read before passing on to some other, and perhaps more interesting, item. Any unfavourable inference about the plaintiffs’ characters or conduct which he might have drawn from what he read would have been one of first impression. Yet in this court three lords justices and four counsel have spent the best part of three days upon a minute linguistic analysis of every phrase used in each of the letters. If this protracted exercise in logical positivism has resulted in our reaching a conclusion as to the meaning of either letter different from the first impression which we formed on reading it, the conclusion reached is unlikely to reflect the impression of the plaintiffs’ character or conduct which was actually formed by those who read the letters in their morning newspaper in 1964.

Nevertheless, the artificial and archaic character of the tort of libel makes the exercise necessary in this appeal, even though in the end we return to the first impression with which we began. Libel is concerned with the meaning of words. Everyone outside a court of law recognises that words are imprecise instruments for communicating the thoughts of one man to another. The same words may be understood by one man in a different meaning from that in which they are understood by another and both meanings may be different from that which the author of the words intended to convey. But the notion that the same words should bear different meanings to different men and that more than one meaning should be “right” conflicts with the whole training of a lawyer. Words are the tools of his trade. He uses them to define legal rights and duties. They do not achieve that purpose unless there can be attributed to them a single meaning as the “right” meaning. And so the argument between lawyers as to the meaning of words starts with the unexpressed major premise that any particular combination of words has one meaning which is not necessarily the same as that intended by him who published them or understood by any of those who read them but is capable of ascertainment as being the “right” meaning by the adjudicator to whom the law confides the responsibility of determining it.

That is what makes the meaning ascribed to words for the purposes of the tort of libel so artificial.

62    Lord Justice Diplock further observed in Slim v Daily Telegraph at 173:

Where as in the present case, words are published to the millions of readers of a popular newspaper, the chances are that if the words are reasonably capable of being understood as bearing more than one meaning, some readers will have understood them as bearing one of those meanings and some will have understood them as bearing others of those meanings. But none of this matters. What does matter is what the adjudicator at the trial thinks is the one and only meaning that the readers as reasonable men should have collectively understood the words to bear. That is “the natural and ordinary meaning” of words in an action for libel.

63    This single meaning rule is also entrenched by High Court authority: see Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 per Brennan J at 506, Gibbs CJ, Stephen and Wilson JJ agreeing. The rule is a deeply rooted principle of defamation law, reflecting the fact that the tort is complete upon publication. Disparagement of reputation is the essence of an action for defamation: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; 238 CLR 460 per French CJ, Gummow, Kiefel and Bell JJ at [32]. No proof is required that any person subjectively understood the defamatory meaning alleged. Rather, the tort is founded upon the meaning of a publication by reference to the objective standards discussed in the authorities, comprehending all aspects of a person’s standing in the community: Radio 2UE at [36], [39]-[40]. Defences of truth, both at common law and in the Defamation Act, are of confession and avoidance. They proceed upon the basis that the Court has first made findings as to what defamatory imputations were conveyed by a publication. At that point, the onus is on the publisher to prove the substantial truth of each pleaded meaning found to have been conveyed. Section 25 of the Defamation Act makes this explicit by attaching the justification defence of truth to the defamatory imputations complained about.

64    The single meaning rule has also been characterised as being necessary in order to balance the competing interests of freedom of expression and protection from damage to reputation: Ten Group Pty Ltd v Cornes [2012] SASCFC 99; 114 SASR 46 per Kourakis CJ at [45-[46], [49]-[50]. That balance is to be struck in the putative shoes of an ordinary reasonable person as a reader, viewer or listener, which encourages avoidance of the lawyer’s fondness for precision and careful reasons in favour of a general impression and understanding gleaned from the words used. The phrase “ordinary reasonable person” will be used in these reasons to refer to the putative person used to gauge whether a pleaded imputation has been conveyed: see Trkulja at [32] as reproduced above.

65    It is therefore important that a judge as the tribunal of fact keeps steadily in mind the content of the obligation to consider imputations from the perspective of the ordinary reasonable person, eschewing the training and practice as a lawyer and the ordinary application of those skills.

66    In aid of how best to carry out the task of ascertaining the single meaning of a publication that has the diverse characteristics of being both online and of some length, in John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; 77 ALJR 1657, McHugh J (in dissent in the result as to whether a jury erred in finding imputations conveyed, but not as to principle) observed at [26] (footnotes omitted):

However, although a reasonable reader may engage in some loose thinking, he or she is not a person “avid for scandal”. A reasonable reader considers the publication as a whole. Such a reader tries to strike a balance between the most extreme meaning that the words could have and the most innocent meaning. The reasonable reader considers the context as well as the words alleged to be defamatory. If “[i]n one part of [the] publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and antidote must be taken together.” But this does not mean that the reasonable reader does or must give equal weight to every part of the publication. The emphasis that the publisher supplies by inserting conspicuous headlines, headings and captions is a legitimate matter that readers do and are entitled to take into account. Contrary statements in an article do not automatically negate the effect of other defamatory statements in the article.

67    In Rivkin, Callinan J observed in part of [187]:

It is true that an article has to be read as a whole. But that does not mean that matters that have been emphasized should be treated as if they have only the same impact or significance as matters which are treated differently. A headline, for example, expressed pithily and necessarily incompletely, but designed to catch the eye and give the reader a predisposition about what follows may well assume more importance than the latter.

68    The weight to be given to headings and subheadings, especially at the commencement of an article, may be seen to have somewhat greater force in an online article, being more likely to be read on a portable device of some kind than on a desktop computer and being more likely to be given greater weight and attention.

69    While the need to read the publication as a whole remains as a matter of law, as a matter of common sense, the level of consideration and absorption of detail is likely to be less as the reader progresses further into an article. That is especially so when there is the visual attraction, and interruption, of both photographs and images that form part of the article, and advertising and other images distracting from it.

70    Thus, the single meaning rule precludes relying upon a meaning that some ordinary reasonable persons, but not others, would perceive as being conveyed. The necessary and indispensable fiction required by the law is to arrive at only one “right” meaning. If that single meaning does not accord with the pleaded imputation, that imputation is not conveyed. Thus, it is possible for a part of a publication taken in isolation to convey a defamatory meaning in accordance with a pleaded imputation, but for that imputation not to be conveyed by the overall effect of that publication as a single meaning.

71    That does not mean that inconsistent meanings cannot be pleaded, but they may overtly or in practical terms be in the alternative. In Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; 271 FCR 632, the Full Court set out the following formulation of how the single meaning of a publication may impact if a pleaded imputation is thereby conveyed (citations included):

[32]    … The issue at trial is the single meaning that an objective audience composed of ordinary decent persons should have collectively understood the matter to bear.

[33]    What we have said above in relation to a single meaning should not be understood as saying that an applicant is precluded from alleging more than one imputation. An applicant may allege that a published matter conveys two or more distinct defamatory imputations, and may allege imputations in the alternative (Federal Court Rules, r 16.06), and subject to any defences, will succeed if one or more of those imputations is found to be conveyed. But in evaluating whether any individual imputation is conveyed, an applicant is precluded from succeeding merely because a substantial number or proportion of persons in the audience would have understood the words to have that defamatory meaning: Ten Group Pty Ltd v Cornes [(2012) 114 SASR 46] at [193] (Blue J).

72    Ms Molan adopted this formulation in her written submissions, and added that the effect of this was that her “pleaded imputations fix the meaning of the matter for the purposes of the defence of justification, because if the Court is required to consider the defence it will have already found that the applicant’s imputations are conveyed”.

73    Dailymail.com also adopted this formulation in their written closing submissions, but sought to use it to demonstrate how this rule as applied to the current facts meant that certain imputations from the 5 June online article could not be made out. It also submits that “truly inconsistent meanings cannot both be found to be conveyed by the same matter”.

Truth defence

74    Section 25 of the Defamation Act provides:

It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.

75    That defence must fail unless all defamatory imputations carried by the matter complained of are proved to be substantially true, because the defence operates on an all or nothing basis: Fairfax Digital Australia & New Zealand Pty Ltd v Kazal [2018] NSWCA 77; 97 NSWLR 547 per Meagher JA at [38] and per Gleeson JA at [96]. As Dailymail.com does not plead a defence of truth for the 1st imputation, and does not press the pleaded defence of truth for either the 3rd imputation or the 4th imputation, truth cannot be a defence to the 5 June online article. However, substantial truth established for an imputation that has been conveyed and is not otherwise the subject of a successful defence may be relied upon in mitigation of damages.

Contextual truth defence

76    Section 26 of the Defamation Act provided as at June 2020 and until 30 June 2021:

It is a defence to the publication of defamatory matter if the defendant proves that:

(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true, and

(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

77    I note for completeness, although having no bearing on this case except to limit its future application, that the wording of s 26 changed on 1 July 2021 to read as follows:

(1)    It is a defence to the publication of defamatory matter if the defendant proves that—

(a)    the matter carried one or more imputations that are substantially true (contextual imputations), and

(b)    any defamatory imputations of which the plaintiff complains that are not contextual imputations and are also carried by the matter do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

(2)    The contextual imputations on which the defendant may rely to establish the defence include imputations of which the plaintiff complains.

78    As was stated in Fairfax Media Publications Pty Ltd v Zeccola [2015] NSWCA 329; 91 NSWLR 341 per McColl JA (with whom Macfarlan JJA and Sackville AJA agreed): “the purpose of the contextual truth defence is better expressed more broadly, namely that a plaintiff should ‘not be able to avoid serious stings in defamatory matter by selective pleading’ ” (quoting from Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174; 81 NSWLR 157 at [85]). This does not require the pleading of contextual imputations that not only differ in substance, which is required, but also that they differ in kind, which is not required: see [70]-[71], [112], [114].

79    The requirement that a contextual imputation be different in substance to a pleaded imputation has a lineage traced back to the former Defamation Act 1974 (NSW), but is also supported by the phrase “in addition to the defamatory imputations of which the plaintiff complains” forming part of s 26 until 1 July 2021: see Zeccola at [43]-[47]. In Domican v Pan Macmillan [2019] FCA 1384, Wigney J observed at [33]:

One way of testing whether two imputations differ in substance is to consider whether different evidence would be required to justify the different imputations: Singleton v John Fairfax & Sons Ltd (unreported, Supreme Court of New South Wales, Hunt J, 20 February 1980); Saint v John Fairfax Publications Pty Ltd [2002] NSWSC 312 at [11]-[12]; Purcell v Cruising Yacht Club of Australia Pty Ltd [2003] NSWSC 245 at [45]. The evidence that would be required to prove the substantial truth of an imputation that the applicant was a violent criminal who took part in gang wars would be different to the evidence that would be necessary to prove the substantial truth of the imputation that a person was a violent criminal. To use the example given earlier, while evidence which proved that the person had committed offences of affray or domestic violence would be capable of proving the substantial proof of the latter, it would not be capable of proving the substantial truth of the former.

Honest opinion defence

80    Section 31 of the Defamation Act provided as at June 2020 and until 30 June 2021 (with presently immaterial additions being made to subsection (5) on 1 July 2021, widening the scope of “proper material”):

(1)    It is a defence to the publication of defamatory matter if the defendant proves that—

(a)    the matter was an expression of opinion of the defendant rather than a statement of fact, and

(b)    the opinion related to a matter of public interest, and

(c)    the opinion is based on proper material.

(2)    It is a defence to the publication of defamatory matter if the defendant proves that—

(a)    the matter was an expression of opinion of an employee or agent of the defendant rather than a statement of fact, and

(b)     the opinion related to a matter of public interest, and

(c)    the opinion is based on proper material.

(3)    It is a defence to the publication of defamatory matter if the defendant proves that—

(a)    the matter was an expression of opinion of a person (the commentator), other than the defendant or an employee or agent of the defendant, rather than a statement of fact, and

(b)    the opinion related to a matter of public interest, and

(c)    the opinion is based on proper material.

(4)    A defence established under this section is defeated if, and only if, the plaintiff proves that—

(a)    in the case of a defence under subsection (1)—the opinion was not honestly held by the defendant at the time the defamatory matter was published, or

(b)    in the case of a defence under subsection (2)—the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published, or

(c)    in the case of a defence under subsection (3)—the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published.

(5)    For the purposes of this section, an opinion is based on proper material if it is based on material that—

(a)    is substantially true, or

(b)    was published on an occasion of absolute or qualified privilege (whether under this Act or at general law), or

(c)    was published on an occasion that attracted the protection of a defence under this section or section 28 or 29.

(6)    An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material.

81    While s 31 is directed to the matter complained of – here the 5 June online article – it nonetheless falls to be considered from the perspective of the defamatory imputations found to have been conveyed: Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; 232 CLR 245 per Gummow, Hayne and Heydon JJ at [83]; see also Feldman v Polaris Media Pty Ltd (as trustee of Polaris Media Trust (t/as Australian Jewish News)) (No 2) [2018] NSWSC 1035; (2018) Aust Torts Reports 82-395 per McCallum J at [43] and Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15; 387 ALR 123 per Lee J at [130]. Even with the benefit of the prism of the pleaded imputations to identify the aspects that are defamatory and found not to be substantially true, the defence is directed to the substance of what has been conveyed by the publication in the context of the whole, rather than the choice of words pleaded which may not accurately reflect the published language: Harbour Radio v Ahmed [2015] NSWCA 290; 90 NSWLR 290 at [44].

82    There is no definition in the Defamation Act as to what constitutes an opinion. That is left to the authorities, reflecting established principles of long standing. In John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164; (2005) Aust Torts Reports 81-789, Giles JA observed (emphasis added to the quotation at [25]):

[25]    The common law position is explained in Gatley, para 12.6 -

“12.6 The Distinction. The fundamental rule is that, subject to what is said below, the defence applies to comment but not to imputations of fact. If the imputation is one of fact the defence must be justification or privilege. However, the matter is complicated for two reasons: first, there may be difficulty in distinguishing comment and fact; secondly, a statement of fact which is an inference from other facts stated or referred to may be a comment for the purposes of the defence. Though ‘comment’ is often equated with ‘opinion’ this is an over-simplification. More accurately it has been said that the sense of comment is ‘something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation, etc.’” (citations omitted)

[26]    The quotation at the end of this passage is from the judgment of Cussen J in Clarke v Norton [1910] VLR 494 at 499, and his Honour’s statement has long commanded acceptance. The learned editors also cite in a footnote to this passage from Mitchell v Sprout [2002] 1 NZLR 766 at [19], “The defence applies where the words appear to a reasonable reader to be conclusionary”.

[27]    There can not be a clear line between comment and statement of fact. Many defamatory words have elements of fact, conclusion from facts and expression of opinion. A characterisation must nonetheless be made, and the context and circumstances of the use of the words will be important.

…

[30]    As can be seen from the illustrations, it will be important to the response of the ordinary reasonable reader whether what is said to be comment is supported by facts presented or indicated in the published matter. In Kemsley v Foot [1952] AC 345 at 356-7 Lord Porter endorsed Odgers on Libel and Slander, 6th ed, 1929 at 166 -

“Sometimes, however, it is difficult to distinguish an allegation of fact from an expression of opinion. It often depends on what is stated in the rest of the article. If the defendant accurately states what some public man has really done, and then asserts that ‘such conduct is disgraceful,’ this is merely the expression of his opinion, his comment on the plaintiff’s conduct. So, if without setting it out, he identifies the conduct on which he comments by a clear reference. In either case the defendant enables his readers to judge for themselves how far his opinion is well founded; and, therefore, what would otherwise have been an allegation of fact becomes merely a comment. But if he asserts that the plaintiff has been guilty of disgraceful conduct, and does not state what that conduct was, this is an allegation of fact for which there is no defence but privilege or truth. The same considerations apply where a defendant has drawn from certain facts an inference derogatory to the plaintiff. If he states the bare inference without the facts on which it is based, such inference will be treated as an allegation of fact. But if he sets out the facts correctly, and then gives his inference, stating it as his inference from those facts, such inference will, as a rule, be deemed a comment. But even in this case the writer must be careful to state the inference as an inference and not to assert it as a new and independent fact; otherwise, his inference will become something more than a comment, and he may be driven to justify it as an allegation of fact.”

83    The perspective of the ordinary reasonable person must thus be applied to determine whether the defamatory meaning conveyed is not a statement of fact, but rather an expression of opinion, in the sense of being, or being akin to, “a deduction, inference, conclusion, criticism, remark, [or] observation”. As Gummow, Hayne and Heydon JJ observed in Manock at [36] (omitting footnotes):

The question of construction or characterisation turns on whether the ordinary reasonable “recipient of a communication would understand that a statement of fact was being made, or that an opinion was being offered” – not “an exceptionally subtle” recipient, or one bringing to the task of “interpretation a subtlety and perspicacity well beyond that reasonably to be expected of the ordinary reader whom the defendant was obviously aiming at”.

84    The easiest way to distinguish between facts and opinion is if the former is stated and the latter overtly follows. However, that conventional case is not necessarily required by the law, and the dividing line between the two may not be easy to discern. What matters is that the defamatory matter is capable as being “recognisable as comment and not as a statement of fact”: Manock per Gleeson CJ at [9]. As Gummow, Hayne and Heydon JJ pointed out in Manock at [49]:

asufficient linkage between the comment alleged and the factual material relied on can appear in three ways: the factual material can be expressly stated in the same publication as that in which the comment appears (ie by “setting it out”); the factual material commented on, while not set out in the material, can be referred to (ie by being identified “by a clear reference”); and the factual material can be “notorious”.

85    Just as opinion is not defined, nor is public interest. In a given situation, there may be an important distinction between something that is merely interesting to the public, and something that rises to the level of being “related to a matter of public interest”, with only the latter being what is contemplated by s 31(3)(b). As Lee J pointed out in Stead at [141]:

Public interest is also not defined in the Act and the parties accepted that it is not a concept susceptible to comprehensive definition, and may constitute an infinite variety of matters: John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364 (at [8] per Ipp JA). Given there is no bright line, it amounts to an evaluative assessment; but in making the assessment there are, at least, some guideposts. In Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183; 135 ALR 368, Dawson, McHugh and Gummow JJ suggested (at CLR 221; ALR 397) that the question was whether the claimant was engaged in conduct which “inherently, expressly or inferentially, invites public criticism or discussion”. But Brennan CJ and Gaudron J considered that this formulation was too narrow (at CLR 193, 240–2; ALR 375, 412–14) and referred to the statement by Lord Denning MR in London Artists Ltd v Littler [1969] 2 QB 375 at 391; [1969] 2 All ER 193 at 198 that the concept of the public interest should not be confined within narrow limits, and that anything which is “such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on” is a matter of public interest.

86    Section 31(5) reproduced above relevantly defines the “proper material” upon which an opinion must be based (noting the scope of such material has since been enlarged with effect from 1 July 2021). In this case, that is confined to whether the material relied upon as proper material is “substantially true” per s 31(5)(a), in turn defined in s 4 as “true in substance or not materially different from the truth”.

87    Hunt J observed in Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 492A:

the material upon which a comment is based is that upon which it purports to be based, in the sense of that which the ordinary reasonable reader would have understood from the matter complained of to have been intended by the author to be considered as the basis of [the] comment.

88    There is no test of reasonableness or rationality in basing the opinion upon proper material. All that matters is that the comment be fair, in the sense of being honest, rather than necessarily being reasonable. As Hunt J pointed out earlier in Bickel at 487:

The law does not require such comments when published to be fair to the author or to be objectively correct. The law permits comments to be published which have been written by people who are biased and by those who are prejudiced, provided only that they honestly hold the opinions expressed or, to use the words of the statute, provided that the comment represents the opinion of the defendant. The justification for this law is that the book is within the public domain and theoretically the readers of the published criticism may purchase the book in order to judge for themselves how far the critic's opinion is well founded: Kemsley v Foot [1952] AC 345, at p 356, per Lord Porter, quoting from Odgers on Libel and Slander (1929) 6th ed, at p 166.

89    However, if any expressions of opinion otherwise demonstrated cannot be shown to be only based upon proper material, then reasonableness is required in relation to partial reliance upon such material: s 31(6). That is, the effect of s 31(6) when relied upon is that the opinion does not have to be based upon facts that are true, provided it might reasonably be based on proper material. As Hunt J observed in relation to the distinction between a comment based wholly on proper material, and a comment not shown to be so in Sims v Wran [1984] 1 NSWLR 317 at 325B-D (emphasis in original):

The difference between an opinion which might honestly be held upon certain material and that which might reasonably be held upon more circumscribed material may be substantial indeed. Despite a perhaps unwise choice of language in some of the older cases (of which some are quoted in Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699 at 715, 716), the emphasis in relation to the common law defence of fair comment has always been that a commentator is entitled to express his honest opinion, whether or not that opinion is one which would reasonably have been based upon the same material: Turner's case (at 461). The same distinction between a particular person's subjective belief and the objective standard of reasonableness has been drawn in other fields of endeavour — notably in the criminal law, in relation to the issue of self-defence: Viro v The Queen (1978) 141 CLR 88 at 140.

The introduction of the concept of reasonableness in lieu of that of honesty as the test to determine whether a particular statement is a comment places a far greater burden upon the defendant in establishing his defence. That greater burden was no doubt intended by the legislature to offset the advantage which the statutory variant gives to the defendant by permitting the continued availability of the defence of comment notwithstanding the defendant's failure to establish the truth or the existence of the whole of the material upon which his comment was based.

90    It should be noted for completeness that the Defamation Act 1974 (NSW) in force at the time that both Bickel and Sims were decided did not have a definition of “proper material” and also made the imputation, rather than the matter complained of, the basis of the cause of action.

91    If the defence is successfully engaged, Ms Molan can defeat it by proving Dailymail.com had reasonable grounds to believe that the opinion was not honestly held by a commentator it relies upon: s 31(4)(c).

WHETHER THE PLEADED IMPUTATIONS WERE CONVEYED

1st imputation: The applicant, having deliberately mocked the names of Pacific Islanders on air, then lied about it by falsely claiming she was referring to an “in-joke” between her and her co-hosts on the commentary team

92    Ms Molan breaks the 1st imputation into two elements in order to identify the particular paragraphs relied upon in addition to the article being read as a whole, slightly recasting the language of the pleaded imputation for this purpose:

(a)    deliberate mocking of the names of Pacific Islanders on air: [1]-[2], [4]-[5], [8], [12], [14]-[15], [24], [27], [28]-[29], [33], [67]-[69]; and

(b)    lying about this by falsely claiming it was a reference to an “in joke”: [2], [6]-[8], [11]-[12], [21], [34], [38], [41], [65].

93    Ms Molan acknowledges there is an element of tautology in the mocking aspect as pleaded, because it is difficult to see how mocking can be other than deliberate. Her point is that the effect of the individual paragraphs identified, as well as the effect of the article overall, is to portray her as having mocked the names of Pacific Islanders during the 14 second segment and that this mocking was not inadvertent on her part. The article was attributing this to the “Hooka, Looka, Mooka, Hooka, Fooka” statement in the context of her co-host, Mr Levy, referring to the rugby league commentator Mr Chris Warren getting ready for the football game by “running through all the pronunciations”, in context, of the names of rugby league players.

94    Dailymail.com takes the position that the 1st imputation is not conveyed, and does not plead the defences of justification by reason of substantial truth. However, Dailymail.com does plead a defence of contextual truth in answer to all eight imputations. Dailymail.com raises the question of whether the imputation goes further than what is able to be found in the express words used and implications and inferences reasonably able to be found. The express words in the 5 June online article clearly and expressly convey that Ms Molan mocked the names of Pacific Islanders on air, and also that this was deliberate. Dailymail.com does not deny this and in fact asks the Court to find that this occurred as a matter of fact, an issue to which I return below. The contentious aspect is how the article is said to have conveyed that she lied about having mocked the names by making a false claim about the joke. Dailymail.com contends that such a meaning is not there to be found.

95    The express words also convey that Ms Molan was making a claim that she was referring to a joke between her and her co-hosts on the commentary team, which is set out in detail in the 5 June online article at [42]-[59], and to that extent that it was not just a joke, but an “in” joke.

96    Ms Molan’s argument for it being implied that she had lied about what she had said being part of a joke specifically relies upon:

(a)    the use of the word “claimed” in the fourth dot point after the heading at [2] and again at [6];

(b)    the references to that claim being made despite the other co-hosts remaining silent, also at [6]; and

(c)    the description of the reaction of the other co-host, Mr Brohman, in saying “What? I’m not sure what she said there”, recorded at [7].

97    Ms Molan’s argument also relies specifically upon [8], [11]-[12], [21], [34], [38], [41], [65] and more generally upon effect of the entire article.

98    A number of those specific paragraphs might be seen to cut both ways. They may tend to suggest that the explanation was untrue. They may also suggest that it was an insufficient explanation to say it was a joke, in that it does not excuse such behaviour; and that there was nothing funny about engaging in such behaviour: see in particular [8], [11]-[12] and [21]; see also [24] (second tweet reproduced) and [33] and perhaps also [38]-[39]. At least some of the persons whose reactions were reported upon did not in terms dispute that the explanation given was genuine, but rather considered it not to be a good enough reason to engage in such behaviour.

99    The further passages that support the implication that Ms Molan relies upon are as follows:

(a)    [34] describes Ms Molan’s explanation as “now you pull this bs”, that is “bullshit”, the overall phrase constituting a colloquialism for something that is emphatically regarded as not telling the truth (ie, “that is complete bullshit”, as opposed to merely spinning a yarn or some lesser implication, ie, “you are a bullshit artist”). It is a phrase that is likely, if read even casually, as being at the less benign end of the colloquial spectrum.

(b)    [38] records a comment (verbatim) “You don’t get to make fun of our names and pretend its all in good fun”, with the word “pretend” tending to imply falsity, not just inadequacy.

(c)    [41] records Ms Molan having “no idea why no-one laughed, and suggested that they were distracted by the busy studio”, clearly enough referring to her co-hosts’ supposed lack of a humorous reaction, and clearly enough tending to imply that the explanation given of a joke was not true because of the reason being implicitly lame given the lack of such a reaction.

(d)    [65] repeats the substance of [41], but as a caption to a photograph of Ms Molan.

100    While there are factors which point in other directions to that asserted by Ms Molan, I must arrive at a single meaning. I consider that the way in which an ordinary reader would most likely comprehend the story being told, being more ready to read between the lines and draw more damaging inferences than a lawyer closely analysing the twists and turns of language, was that Ms Molan was deliberately giving a false explanation for what she had said. I also conclude, even assuming (rather than accepting at this stage) that it was true, that the article conveyed that this was not a good enough reason for engaging in such conduct. This does not involve two different meanings about the same aspect, but rather two different aspects with different meanings. As a deliberately false explanation is not in substance different from a lie, I am satisfied that the 1st imputation is in substance conveyed.

2nd imputation: The applicant is so callous that, having deliberately mocked the names of Pacific Islanders on air, she then refused to apologise despite the offence she had caused the Polynesian NRL community and their cultural history

7th imputation: The applicant is so callous that, having deliberately used an accent to mock the names of Pacific Islanders on air, she then refused to apologise

8th imputation: The applicant is so callous that, having deliberately used an accent to mock the names of Pacific Islanders on air, she then refused to apologise

101    Ms Molan breaks these parallel imputations into three elements in order to identify the particular paragraphs relied upon in addition to the 5 June online article being read as a whole, again slightly recasting the language of the pleaded imputation for this purpose:

(a)    deliberate mocking of the names of Pacific Islanders on air: [1]-[5], [8], [12], [14]-[15], [24], [27], [28]-[29], [33], [67]-[69];

(b)    so callous she refused to apologise: [1], [34], [40]-[42]; and

(c)    offence she had caused to Polynesian NRL community and their cultural history: [1], [2], [4], [8]-[12], [16]-[17], [21], [24], [26], [31]-[33], [62]-[63].

102    As for the 1st imputation (having deliberately mocked the names of Pacific Islanders on air, then lied about it etc), Ms Molan argues the phrase “having deliberately mocked the names of Pacific Islanders on air” was conveyed by the 5 June online article, the 5 June tweet and the 6 June tweet. Dailymail.com does not seriously contend otherwise given that is the burden of what was expressly stated. Dailymail.com also does not take issue with those three publications conveying that “she then refused to apologise”, that also being expressly stated. However, Dailymail.com denies that any of those three publications conveyed that Ms Molan was “so callous”. It argues instead that the thrust of the strong criticism set out in the 5 June online article did not suggest she was callous, and that it only conveyed than that she failed to understand the gravity of what she had done and the hurt that she had caused. Expressed in this way, the live issue is the implication to be drawn about her attitude or stance as to what she was accused of doing, and concerning the reported refusal to apologise.