The Supreme Court of Western Australia in Douglas v McLernon has warned against the common misconception that the laws of defamation do not apply to internet publications.

Three businessmen brought four separate defamation proceedings, heard consecutively, against a Mr McLernon, the alleged author of articles appearing on three websites, and two other individuals, due to their alleged association with those websites (either personally or via website servicing corporations).

The Judge was reluctant to perpetuate the publications by describing them in a manner which would effectively re-publish them, however found they included various defamatory imputations concerning the Plaintiffs ranging from intimidating ASIC officers, involvement with organised crime, using false corporate entities, and abusing company directors’ powers.

Mr McLernon represented himself, and admitted the Plaintiffs’ claims in Court documents he had drawn himself. At the hearing, Mr McLernon claimed to suffer from a poor memory, and was unable to articulate any defence. His evidence was found to be false, unbelievable and unreliable, and he was described by the Judge as “some sort of self-appointed internet crusader” dispensing poison over the internet. He was found liable for the publications because of his “personal fingerprints” identified on the articles, and his conduct during the proceeding.

Although damages might have been viewed an inadequate remedy (due to Mr McLernon’s financial position) they were important for the Plaintiffs’ reputational vindication, and were awarded in the sum of $250,000 for two Plaintiffs, and $200,000 for the third Plaintiff, plus interest and indemnity costs. Permanent injunctions were also granted, restraining future publications regarding the Plaintiffs and the imputations sued upon.

The claims against the other Defendants were not made out, on a “no case submission” in respect of one, and because there was no evidence to suggest the other had any ability to control the publications on the websites.

This case highlights:

  1. Defamatory publications on the internet can have a wide reaching and devastating effect;
  2. It is critical to have legal advice with respect to this very technical area of the law; and
  3. Those aggrieved by defamatory internet publications should maintain records of the reactions of third parties towards them as a result of the publication, to evidence the fact that it has been downloaded and read by others, and the seriousness of its impact. Evidence of being excluded, shunned or ostracised would also be valuable.