Serious harm in defamation and knocking out claims early

Since November 2021, the Uniform Defamation Acts have no longer had the triviality defence. Instead, a new element to the cause of action for defamation was introduced: the requirement to demonstrate serious harm.

The recent decision of Jones v Jackson (No 2) [2023] NSWDC 410 has demonstrated the effectiveness of this new element at dealing with potentially insignificant claims at an early stage in the proceedings.

Jones v Jackson: was a Paralympian (seriously) defamed?

Mr Stuart Jones and Ms Letitia Jackson were in a de facto relationship until late 2001. Following their separation, Jones subsequently had no contact with Jackson or their son until shortly before these proceedings.

Jones subsequently suffered an injury which led to a disability which limited his ability to ride two-wheeled bicycles, and the need for a ‘trike’ to assist with balance. He then began participating in paracycling competition in the T2 category to great success, ultimately representing Australia at the Tokyo Paralympics. In November 2021, he was awarded the “Spirit of Sport Award” by the New South Wales Institute of Sports, who announced the award via a post on its Facebook page.

In response to the announcement of the award, Jackson made the following post:

“Hahaha. Shame he doesn’t have the same kind of “spirit” when it comes to his personal life or telling the truth about his disability. Even as a cheat you failed.”

Amongst other things, Jones pleaded that the Facebook Post imputed that he lied about having a disability in order to participate in a sport for people with disabilities and to represent Australia in the Paralympics, and that he was a cheat. The Post remained online until 12 June 2022 when it was taken down. Jackson published a further post (alleging that “Stuart Jones is not a lawyer. But a lying cheating narcissist”) on the Newcastle Live Facebook page on 2 February 2022. It too was the subject of the proceedings, but no formal ruling on it was sought or made in relation to it.

By consent, the question of whether the Facebook Post met the ‘serious harm’ threshold was brought on for a preliminary separate hearing.

An assessment of harm

The court accepted that the imputations arising from the Facebook Post were serious. However, the evidence before the Court revealed that the Facebook Post appeared to have been published to a rather limited audience, and that a substantial majority of the known audience did not believe the allegations. Jones became aware of the Post from his massage therapist who had drawn it to his attention and commented “Ummm, don’t know who Leticia Jackson is … but, bitch on legs!”. The Post received only three comments in reply, one which asked Jackson to “Grow up” and another which read “Letitia you are an absolutely pathetic person. Such a foul human being to say that. Truly shows the very little character you have”.

The third post was critical of Jones, stating “He can ride a 2 wheel bike with ease”. It was published by an individual known to him, the two having had a history of prior encounters and a generally acrimonious relationship, but for reasons pre-dating and unrelated to the Facebook Post.

While serious harm is not a numbers game, evidence is required of some harm that has actually occurred or is likely to occur. Relevantly, there was no evidence of any other activity or response from any persons, negative or otherwise, either at the time of publication or subsequently. Jones presented no evidence from Google analytics or other “platform of facts” to enable him to assert that these comments were disseminated more widely during that period. There was no evidence of substance to support a "grapevine effect" (ie., the likelihood of percolation/repetition of the allegation beyond the original publishees).

The Court considered that aside from the single negative post from a person already bearing a grudge against Jones, the contemporaneous responses to the Facebook Post were in fact negative to Jackson, and not the "aggrieved" Jones.

Jones' evidence to establish harm was likewise unconvincing: his case was largely reliant on the prospective evidence of a witness who deposed to her concerns and fears about how people in the community might feel about Jones as a result of the publication. No evidence was led of an actual adverse response to the Post.

Interestingly, in considering the type of evidence that might be relevant to determining the nature and extent of harm caused, Judge Gibson, without any relevant authority to call upon, took into account the need to explain an adverse publication to a member of one's family (even though that would not itself constitute evidence of publication). In this case it involved Jones' explanation to his son. His son, however, needed little explanation.

Judge Gibson judiciously summarised the problem facing the Plaintiff’s case: “serious harm requires evidence of damage to reputation”. The publishing of the Facebook Post revealed no evidence of adverse comments from subsequent commenters to the Post, or from the parties' son who subsequently reached out to Jones and expressed support for his father. The duration of alleged harm is also a significant determinant. This presented a significant hurdle in the case because if there was any harm, the evidence indicated it was only for a few days to possibly a few short weeks.

The lack of harm was further evidenced by the fact that Jones, in the aftermath of the Facebook Post:

• continued to be selected for Australian Paracycling teams;
• had made various posts on social media reflecting on how “good” his life was and how happy he was;
• was awarded the “Spirit of the Paralympic Games” award; and
• continued to otherwise have a successful sporting career.

In short, the available evidence revealed that the Facebook Post was largely dismissed by the handful of people who actually saw it, and Jones' career and success as a Paralympian had continued unaffected. The Facebook Post did not result in his suffering "serious harm". The claim was dismissed accordingly.