Wilson v Bauer Media Pty Ltd [2017] VSC 521

On 13 September 2017 Australian actress Rebel Wilson made history when the Supreme Court of Victoria awarded her more than $4.5 million in damages in her defamation case against Bauer Media. This is the largest defamation damages sum ever ordered by an Australian court.

The total damages award of $4,567,472 consists of:

  • $650,000 in general damages, including aggravated damages; and
  • $3,917,472 in special damages for Wilson’s loss of opportunity for new screen roles.

The defamatory material

Bauer Media Pty Ltd and Bauer Media Australia Pty Ltd (the Defendants) publish the Woman’s Day print magazine in Australia, as well as online websites including Woman’s Day, Women’s Weekly, New Weekly and OK Magazine. In May 2015, to coincide with the release date of Wilson’s movie Pitch Perfect 2, the Defendants published (and kept alive on various websites until May 2016) a number of articles with various defamatory imputations, including:

  • Wilson is a serial liar who has invented fantastic stories in order to make it in Hollywood
  • Wilson lied about her age by claiming to be 29 years old when she was in fact 36 years old
  • Wilson lied about her name by using the fake name ‘Rebel Wilson’ when her real name is actually Melanie Elizabeth Bownds
  • Wilson lied about a number of things relating to her childhood, including that her family came from a disadvantaged suburb of Sydney when in fact her childhood home was in an upper-middle-class suburb of Sydney
  • Wilson is so untrustworthy that nothing she says about herself can be taken to be true unless it has been independently corroborated.

The Defendants’ submissions that the imputations were substantially true or that their publication was trivial were rejected by the jury in earlier proceedings. Furthermore, the jury found that the defence of qualified privilege did not apply to publication of a Women’s Weekly online article titled ‘The truth about Rebel Wilson’ and that the Defendants were motivated by malice in publishing that article.

General damages

Section 34 of the Defamation Act Victoria 2005 (the Act) provides that the court must “ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded”. Section 35 of the Act outlines a statutory cap on damages for non-economic loss and also provides that the cap can be exceeded “if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages”. The statutory cap applicable at the time of judgment was $389,500.

Significantly, Justice Dixon found that the statutory cap should be exceeded in Wilson’s case due to three primary aggravating circumstances. His Honour held that aggravation in the circumstances of publication arose due to:

  1. the Defendants failing to properly investigate the defamatory allegations made by a source who demanded anonymity and compensation prior to publication
  2. the Defendants publishing defamatory imputations notwithstanding they were well aware the imputations were false
  3. the Defendants repeating the offending imputations in order to both keep the articles current and trending in order to maximise commercial opportunities as well as to respond to and neutralise Wilson’s response to its campaign.

In awarding Wilson general (including aggravated) damages of $650,000 – an amount well above the statutory cap – His Honour held that:

"Bauer Media appreciated the risk of reputational damage to the plaintiff and I am satisfied that I can infer that it did not care whether the plaintiff suffered reputational damage as it pursued its own corporate interests. This recklessness as to the consequences of publication is a state of mind, a corporate motive or purpose, that demonstrated a substantial degree of aggravation that increased the plaintiff’s damage. … When considered in the aggregate, the inescapable conclusion is that a very substantial award of damages, unconstrained by and substantially exceeding the cap for the reasons discussed, bears a rational relationship to the injury inflicted on the plaintiff."

Special damages

Wilson also claimed special damages for loss of opportunity, being the earnings she would have received from lead film roles from mid-2015 to the end of 2016 but, as a result of the Defendants’ articles, did not. Wilson anticipated that, coming off the back of box office hit Pitch Perfect 2, but for the defamatory imputations, she would have received a number of lead roles totalling no less than AUD$5.893 million.

Justice Dixon determined that in order to succeed in her special damages claim Wilson needed to establish that “grapevine repetition” of the defamatory imputations contained in the Defendants’ articles was “sufficiently damaging to her reputation to cause Hollywood film producers, studios and casting directors to decline to cast her in lead or co-lead roles in feature films”.

Wilson called two well-known California-based talent agents as witnesses, who both gave evidence that, following the release of Pitch Perfect 2, Wilson was expected to, and should have, received a number of offers for high profile lead roles. The second witness, Sharon Jackson – a partner of William Morris Endeavour, the largest talent agency in the world, who has worked for Wilson since 2009 – gave evidence that the lack of job offers “was a real mystery” and “didn’t make sense”.

Justice Dixon ultimately held that, but for the “grapevine repetition” of the defamatory imputations contained in the Defendants’ articles, Wilson would have been cast in lead or co-lead roles in a number of feature films. In assessing the value of this lost chance, his Honour held that Wilson lost the opportunity of at least two but not more than four lead or co-lead roles for which she would have earned USD$5-6 million each.

His Honour adopted a median assessment that the opportunity should be valued at three times USD$5 million, being a total of USD$15 million, then discounted this value by 80% for a range of factors including tax, overheads, whether a film project would have been completed and general uncertainties. Ultimately, his Honour awarded Wilson special damages of USD$3 million, being AUD$3,917,472.

Takeaway points

The large award of damages to Rebel Wilson, including aggravated damages, and the Court’s strong criticism of the publisher should send an important reminder to the media, especially publishers of gossip and tabloid content, to ensure that the articles they publish are accurate.