It's not enough to call someone a "Crim" or "Grub" to win a defamation case: Why you need more than hurt feelings

Proving defamatory matter is not enough to win a defamation case. Section 10A of the Defamation Act 2005 (NSW) requires serious reputational harm to also be established and proving that with sufficient evidence can trip a plaintiff up at the start (or at trial if a summary dismissal application does not first occur). Social media cases, especially with niche audiences can present an evidentiary challenge as the courts won’t easily rely on inference alone.

The recent case of Mannoun v Ristevski [2024] NSWDC 564 in the New South Wales District Court highlights the significant challenges plaintiffs may face under Australia’s reformed defamation laws. The decision reaffirms that serious harm must be demonstrated with clear evidence, particularly for allegations made on social media platforms targeting specific audiences.

The allegations: a "crim" and a "grub"

In November 2022 a comment was made to a post on the “Liverpool Council Shenanigans” Facebook page by former councillor Peter Ristevski, who accused the Liverpool Mayor Ned Mannoun, of fraudulently inflating his business’s financials to sell it to a charity for A$1 million, resulting in financial loss for the charity. Ristevski provocatively referred to Mannoun as a “crim” and a “grub” and invited him to sue for defamation.

Mannoun argued that being labelled a “crim” and a “grub” on a public Facebook page was not merely playground name-calling, but a direct hit to his credibility as an elected official who depends on the public’s trust (and presumably their votes).

Serious harm or just hurt feelings – looking at section 10A

Section 10A of the Defamation Act 2005 (NSW), introduced as part of broader defamation law reforms, requires plaintiffs to prove that the defamatory statement caused, or is likely to cause, serious harm to their reputation. This provision aims to filter out trivial claims early in the litigation process and applies across most Australian jurisdictions.

The Court’s analysis of serious harm in Mannoun v Ristevski revolved around several key considerations. First, it examined the reach and audience of the publication, questioning whether the statement had the potential to cause reputational harm beyond its immediate readers. The Court also weighed the nature and gravity of the imputations, considering whether the allegations were serious and specific enough to actually damage Mannoun’s reputation. Finally, the Court focussed on whether Mannoun could provide concrete evidence that the publication had a tangible impact on his reputation, or if the harm was purely speculative.

The decision: Limited harm, limited reach

The District Court dismissed Mannoun’s claim on the grounds that he failed to establish serious harm under section 10A. Judge Gibson’s key findings included:

1. Audience and context: The Facebook group “Liverpool Council Shenanigans” had around 250 followers, many of whom were already critical of Mannoun. The site was directed towards people who were dissatisfied with the Liverpool Council and its management. The Court found that this pre-existing hostility significantly reduced the likelihood of further reputational harm.
2. Publication visibility: The comment was a comment on a post and not readily visible without additional steps to access it – the page had merely 250 followers. The Court noted that comments to posts do not have the same visibility as a post would have, visibility of a comment depends on whether Facebook is accessed on a mobile phone or a computer and comments are not displayed in chronological order. Additionally, social media’s transient nature, combined with the niche audience of the group, limited the potential for widespread dissemination.
3. Lack of compelling evidence: Mannoun relied on anecdotal accounts from two witnesses who cited a handful of vague conversations referencing the allegations. Neither witness testified that their opinion of Mannoun had changed, and no other evidence was provided to demonstrate actual or likely serious harm. The Court regarded the quality of the evidence to be poor. The best the plaintiff’s witnesses could point to was that unknown persons expressed reservations about Mannoun for about a week or two after the matter complained of was published. There was no evidence of any ongoing discussion in the months that followed, or at the time of the proceedings being commenced, or at the time of trial. While the matter remained online, it could not be located unless it was specifically searched for.
4. The “grapevine effect” rejected: Mannoun argued that the defamatory comment spread beyond its initial audience through social sharing, but the Court found insufficient evidence to support this claim. Judge Gibson remarked that the “platform of facts” evidence generally used to establish that the matter complained of must have been read by somebody even though there is little or no evidence of this should be treated with caution in the determination of serious harm as it is essentially inference evidence proving publication.
   
   
5. Insufficient past and future harm: the court noted that evidence of harm may continue to spread in some matters due to the sheer size of the publication, but even then, it can stop by a certain point. Where there is no direct evidence of further publication, in terms of metadata or otherwise, the Court may find that harm to reputation for only a short period arises. In this case, there was little evidence of any ongoing discussions or harm, and more compelling evidence was required by the court to make out serious harm.
   
   
6. No causal link to damage established: in addition to proving serious harm to reputation, a plaintiff must also demonstrate a causal connection between the publication of the defamatory matter and the actual or likely serious harm to their reputation. In this case, the Court was not satisfied that the witnesses’ opinions of Mannoun had changed in any way, let alone any substantial way to think less well of him.

Judge Gibson concluded that the plaintiff’s case relied too heavily on inference and failed to meet the evidentiary burden required to establish serious harm. In a telling remark, the Court observed “…no matter how serious and specific the imputation may be, there must be identification or evidence of the harm and of its causation”.

Key takeaways

This case provides important guidance for both plaintiffs and defendants navigating defamation claims under section 10A:

1. Concrete evidence is essential: Courts will not easily rely on speculation or inference to establish serious harm. Plaintiffs must present specific and credible evidence demonstrating the impact of the defamatory publication on their reputation.
2. Social media can at times present unique challenges: The informal and transient nature of social media, combined with niche or insular audiences, can make it difficult for some plaintiffs to prove serious harm. Claims involving smaller platforms or echo chambers are particularly vulnerable to dismissal.
3. Audience matters: When defamatory statements are made to a limited audience with pre-existing negative views of the plaintiff, the likelihood of serious harm is significantly reduced.
4. Reforms are achieving their purpose: The serious harm threshold is achieving its intended purpose of weeding out unmeritorious claims early in the litigation process, preserving court resources for cases with substantial merit.
5. Not showing serious harm at the outset can be costly: While the trial occupied only one day, there were 13 affidavits in play and four witnesses were cross-examined. Mannoun was represented by senior and junior counsel, and Ristevski was represented by junior counsel. Putting to one side the adverse costs order that he now has to pay, Mannoun’s own costs were likely to be substantial. A significant financial commitment can be required to seek vindication. Before doing so, a claimant will want to deeply assess the quality of the available evidence.