Molan v Fairfax Media Publications Pty Ltd

HER HONOUR: These are proceedings for defamation commenced by Ms Erin Molan, a popular television personality, against the proprietor of the online version of the Sydney Morning Herald. The proceedings arise out of a series of articles and tweets all published on the same day, being 11 January 2017.

The proceedings are before the Court today for first listing. As contemplated by the Defamation List Practice Note SC CL 4, that is the occasion for taking any objection to the form of the pleading. The defendants contend that none of the imputations specified by the plaintiff is reasonably capable of being conveyed by the matters complained of.

There are four matters complained of which may conveniently be considered in two categories. The first and second matters complained of are the article as it first appeared (annexure A) and as tweeted by the journalist, Mr Hornery (annexure B).

Following the receipt of correspondence from another party, the newspaper edited the original article. The third and fourth matters complained of are the edited version, being the article online (annexure C) and the edited article as tweeted (annexure D).

I deal first with the article in its original form. Broadly speaking, the focus of the article was the existence of a rumoured affair between the plaintiff and a person described as “high-profile celebrity accountant and yachtsman”, Mr Anthony Bell. The ostensible purpose of the article was to report the denial of that rumour. The imputations specified by the plaintiff as arising from that article, which are the same in respect of each of the four matters complained of, are:

The defendants submit that the article is not reasonably capable of conveying those imputations because its emphasis is to deny the rumour in question. Mr Gray SC, who appears for the defendants, accepted that the starting point for consideration of this question is that a publisher is liable for the re-publication of a rumour in accordance with the principle stated by Devlin L in Lewis v Daily Telegraph Ltd [1963] 2 All ER 151 at 173:

Mr Gray submitted that, in the present case, all of the imputations are direct allegations amounting to assertions of fact; for example, that the plaintiff had an affair, not that she was suspected of having an affair; that she in fact caused the breakdown of Mr Bell's marriage, not that she was suspected of doing so, and so on. Mr Gray submitted that what the defendants have published here is that the rumours to that effect were denied.

Mr Gray provided a careful review of the authorities as to rumour, emphasising that the unqualified statement of Devlin L set out above is subject to an important qualification. He referred first to the decision of Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 and in particular the remarks of the Court at p 49 of the reported judgment:

Mr Gray referred next to the decision of the Court of Appeal in Nationwide News Pty Ltd v Heggie [2001] NSWCA 257 where the Court noted the general rule stated by Devlin L and approved in Wake but also noted by way of exception that:

Those were the words of Hodgson JA at [18] of the judgment, citing the decision in Bik v Mirror Newspapers Limited [1979] 2 NSWLR 679n. Mr Gray also referred to the separate judgment of Fitzgerald AJA at [28] where his Honour noted that where an article reporting a rumour also contains other relevant passages, the words complained of by the plaintiff must be considered in context to ascertain whether the defamatory imputations are conveyed. His Honour there was also citing the decision in Bik.

Mr Gray also took me to the judgment of the Court of Appeal in John Fairfax Publications Pty Ltd v Obeid [2005] NSWCA 60, which endorses those propositions, adding remarks emphasising the importance of considering the purpose of the re-publication. The main judgment in that case was written by McColl JA, who said at [101]:

Finally, Mr Gray took me to the decision in Bik itself. Bik, of course, was a different kind of case to the present case. There, The Daily Mirror published an article which, as the Court held, from beginning to end had the purpose of reporting that Mr Bik had been cleared of allegations. The article appeared under the headline, "Minister Clears Man of Eight-Year Injustice”. The opening line states “Eight Years of mental anguish and slurs on his professional competence ended in State Parliament this week for Michael Bik”.

There is a passage in Bik which is relevant to the present task in the judgment of Herron CJ. His Honour said at 681F:

Those remarks direct attention to the importance at this stage, on a capacity argument, of having due regard to "all such insinuations and innuendoes" as could reasonably be read into the words published by the ordinary reader. The burden of Mr Gray's submission was that a fair-minded reader would not understand the matter complained of to endorse the reported rumour in any way but would rather understand it as scotching the rumour. Mr Gray went so far as to submit that the reader would see Ms Molan as a “damsel in distress”, unfairly treated by the publication or circulation of the rumour, and would understand that the journalist was coming to her rescue. The journalist is Mr Hornery, who publishes what is openly described as a "celebrity news" column called "Private Sydney". His Twitter name is "Sir Hornbag". He self-describes as "Sydney's most delicious gossip columnist". The column is openly devoted to celebrity gossip, as acknowledged by Mr Gray.

As the authorities to which Mr Gray has taken me reveal, I must have regard to the apparent purpose of the publication. Unlike the publication in Bik, it is difficult to conclude that the publication of a "rumoured affair" in a gossip column would be taken to be published for the purpose of scotching a rumour. Certainly, on a capacity basis, I think I should approach this issue on the premise that the ordinary reasonable reader would not likely take a gossip column to be published for the purpose of scotching rumours or eliminating any belief in the prospect of there being truth in a published rumour.

Mr Gray placed considerable emphasis on the first eight paragraphs of the matter complained of, which he submitted emphasise denial of the rumours. Mr Richardson, who appears for Ms Molan, submitted that even those paragraphs do not absolutely dispel or deny the rumour but are replete with insinuation and innuendo, suggesting truth in the rumour. Mr Richardson further emphasised the content of paras 9, 10 and 11, which hint at aspects of the surrounding circumstances pointing rather to the prospect that the rumour is in fact true.

Mr Gray further submitted that, on a fair reading of the matter complained of, it is not capable of conveying as fact that Ms Molan actually had an affair with Mr Bell but is only capable of conveying that imputation as a suspicion. In response to that submission, Mr Richardson drew my attention to the remarks of Hodson L in Lewis v Daily Telegraph [1963] 2 All ER 151, where his Honour said at 167 and 168:

Mr Richardson submitted that, in a gossip column, the word "rumour" or the phrase "rumoured affair" provides a bare fig leaf of protection to the reputation of the person the subject of the rumour and indeed can, in some circumstances, be incendiary. He noted that the present article is not really about the meltdown of Mr Bell's marriage but is, rather, all about Ms Molan's alleged involvement in that event.

The authorities as to whether imputations are reasonably capable of being conveyed are well known and need not be rehearsed in this judgment. It is perhaps sufficient to refer to the collection of principles in the recent decision of the Court of Appeal in Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227, which served as an important reminder to judges sitting at first instance of the caution that must be exercised in taking imputations from the jury.

In the present case, as to the first and second matters complained of, there is in my view enough in both the express language of the article and the subtlety of that which is alleged only by innuendo, insinuation or implication to conclude that the question whether the imputations are conveyed should go to the jury.

The position is perhaps more difficult in respect of the third and fourth matters complained of. The changes made in the editing process are significant. They appear to have been made in response to a complaint about the article. The newspaper in effect removed for the main part references to the rumours of an affair.

Mr Richardson noted, however, that there is still a reference to Mr Bell having an "association" with Ms Molan (whereas the original article referred to his "long-term relationship" with her). He submitted that, while perhaps slightly less incendiary, references to a "relationship" do suggest a sexual relationship of the kind complained of in the imputations. He also noted that the hints of evidence that there might be some truth in the rumour appearing in paras 9 to 11 remain in the edited version of the article.

The position is perhaps stronger in the case of the tweeted version of the article, which retained a reference to the "rumoured affair" in the caption to a photograph embedded as part of the link to the article in the tweet.

I accept that the plaintiff's case is arguably weaker in respect of annexures C and D to the statement of claim, the third and fourth matters complained of, but in my view it remains a matter which I must allow to go to the jury. For those reasons, the plaintiff's challenge to the pleading is rejected, and the application to have those imputations taken from the jury is refused.

I order the defendants to pay the plaintiff's costs of today's hearing.