Two recent defamation actions brought by prominent politicians have highlighted the perils of Twitter and other forms of social media for defamation defendants, and the need to check one’s facts and make reasonable enquiries before publishing something defamatory about a prominent person.
In this two-part alert series, Brett Bolton, Special Counsel and Matthew Wilkinson, Associate, explain these decisions and discuss how the outcome in one of the actions is likely to lead to calls for reform of the defamation laws in this country.
Part 2: Flegg -v- Hallett  QSC167
Justice Peter Lyons of the Queensland Supreme Court recently delivered judgment in the defamation action commenced by Bruce Flegg, (the former Minister for Housing and Public Works in the Newman Government and one time leader of the Liberal Party) against his former media advisor. The verdict serves as a sober reminder of the danger of believing that “anything goes” when political matters are debated.
The proceedings sprang from a spectacular falling out in November 2012 between Dr Flegg and his then media advisor, Bruce Hallett. The falling out followed some political controversy surrounding the alleged lobbying activities of Dr Flegg’s son and whether Dr Flegg had fully disclosed lobbying activities directed towards him and his political staff. The fallout from the controversy included Dr Flegg’s dismissing his then Chief of Staff and, subsequently, Mr Hallett as his media advisor.
On the day of his dismissal (12 November 2012), Mr Hallett issued a media release which included the following statements:
“I will be making certain disclosures that Dr Flegg is not a fit and proper person to be a Minister. .... Flegg has dismissed me so I am going to put all of this in the public record.”
At Mr Hallett’s media conference the following day, he made statements to the following effect:
- That Dr Flegg was unfit to hold ministerial office;
- That Mr Hallett could prove Dr Flegg’s unfitness to be a Minister;
- That Dr Flegg had allowed himself to be inappropriately lobbied by his son; and
- That Dr Flegg had lodged a grossly inaccurate and doctored register of lobbyists (and had refused to rectify the situation when requested).
Later that day, Mr Hallett was interviewed on Radio 4BC and repeated the allegations that he made during the media conference.
Dr Flegg commenced defamation proceedings in December 2012 and claimed general damages (including aggravated damages) and substantial special damages.
The Court had to decide the following issues:
Were the statements made in the media release and during the media conference and radio interview defamatory?
Although Mr Hallett argued that his statements were unlikely to damage Dr Flegg’s reputation, Justice Peter Lyons gave short thrift to that argument and found that the statements contained most of the defamatory meanings that Dr Flegg had alleged.
However, as with most defamation cases, the main battle was fought on other fronts. First, whether Mr Hallett could rely on one or more of the numerous defences that the law of defamation provides, and secondly, on the issue of damages.
The defence of qualified privilege
Mr Hallett argued that he could rely on the general law and statutory defences of qualified privilege.
The general law defence is available where the defamatory material relates to government or political matters which are of interest to the public, while the statutory defence of qualified privilege contained in the Defamation Act 2005 focuses on separate, though related matters.Importantly, in order to succeed with either defence, Mr Hallett had to show that he acted reasonably in all of the circumstances. Dr Flegg argued that the defence was not available because Mr Hallett had acted maliciously and in bad faith when he published the defamatory statements.
Justice Peter Lyons found that Mr Hallett had acted unreasonably and in bad faith.His Honour said that it was unreasonable for Mr Hallett to make the statements without checking that the substance of his claims was true and without first seeking Dr Flegg’s response. The evidence showed that Mr Hallett probably did not believe in the truth in many of the claims that he was making. The evidence also showed that he did not have, and made no attempt to gain, access to important documents before making the statements. Finally, the Court found that he had published the statements in revenge for Dr Flegg’s having dismissed him as his media advisor.
Justice Peter Lyons first dealt with Dr Flegg’s claim for general damages. The Defamation Act 2005 imposes a limit on the amount of general damages that can be awarded to a successful plaintiff in defamation proceedings (the relevant limit in December 2012 was $339,000.00). However, the limit can be exceeded if the Court decides that an award of aggravated damages should be made.
Justice Peter Lyons determined that there were several factors that provided a basis to award aggravated damages, including:
- Mr Hallett’s failure to make proper enquiries before making the defamatory statements; and
- His failure to issue an apology after a demand had been made by Dr Flegg’s lawyers, (in circumstances where reasonable enquiries by Mr Hallett after the publications would have established that an apology was appropriate).
After considering the relevant factors, Justice Peter Lyons awarded Dr Flegg general damages of $275,000.00 (which included aggravated damages).
Justice Peter Lyons then had to consider Dr Flegg’s special damages claim. He had claimed special damages of approximately $1.1 million, which he had calculated as being the difference between his ministerial salary and parliamentary salary until the end of the then current term of parliament, and the reduction in his superannuation entitlements following his resignation as a Minister.
Although the Court accepted Dr Flegg’s evidence that he had resigned as a Minister to put an end to the criticism being directed at the Newman Government through the media publicity associated with Mr Hallett’s allegations, it also accepted the argument by Mr Hallett’s lawyers that an allowance needed to be made for “the uncertainties of political life”. As a result Dr Flegg was awarded special damages of $500,000.00.
Lessons from the Flegg decision
The outcome serves as a warning for those involved in political affairs not to think that “anything goes” in the course of public debate. In summary, anyone proposing to publish something defamatory or controversial about a politician or other public figure should:
- Make reasonable enquiries and be satisfied that there is some basis for the allegations that they are about to make;
- Put the allegations to the politician or public figure beforehand, if possible, and seek their response; and
- Don’t ignore the importance of issuing an apology in appropriate cases.
Mr Hallett’s failure to do any of these things has proven to be a very expensive mistake indeed!