offline cases 2

This page highlights further offline defamation cases in Australia, the UK and other jurisdictions.

It covers -

• Falwell and Hustler - satirizing the great & godly in the US
• Safra, Amex and Runcie - 'big money takes on corporate misbehaviour?' and the Archbishop's wife proves that she isn't fair game
• Carson and Caponi
• McLibel and Gunns - a case of "don't feed the beast"?
• the Barclays, BBC, Times and Sweeney - choosing a forum in cross-border action
• Aldington, Tolstoy and Watts - justice or persecution?
• Ettinghausen and HQ - reputation and the scale of damages in Australia
• Lipstadt and Irving - taking on a Hitler apologist

Readers of this site should conduct appropriate research before making their own judgements about circumstances, claims and counter-claims.

     Falwell and Flynt

US adult magazine Hustler in 1983 featured a parody of an advertisement (modeled on an actual Campari campaign) implying that high profile fundamentalist crusader Jerry Falwell (1933- ) had a drunken incestuous relationship with his mother in an outhouse.

Falwell was awarded US$150,000 in damages for emotional distress in a jury verdict after suing for libel, invasion of privacy and intentional infliction of emotional distress. The Supreme Court upheld Hustler's appeal, holding in a unanimous opinion that public figures such as Falwell may not recover for the intentional infliction of emotional distress without showing that the offending publication contained a false statement of fact that was made with "actual malice."

The Court noted that under the First Amendment protection of free speech surpassed the state's interest in protecting public figures from offensive speech, so long as such statements could not be reasonably be construed as providing actual facts about its subject. The average Hustler reader would recognise that the offensive item was satirical, rather than a depiction of Rev Falwell's activity when not leading the Moral Majority.

Falwell has fared better than Hustler and its proprietor Larry Flynt (1942- ), recently gaining notoriety after apparently identifying the 9/11 bombings as punishment for the gay community, wiccans and the ACLU. Hate speech against gay people is apparently less worthy of censure than coarse humour about the righteous.

     Safra, Amex and Runcie

Reclusive financier Edmond Safra (1932-1999) built the international Trade Development Bank, which he sold to American Express in 1983 but managed until 1985. He then began to build a new financial empire. Safra resigned from the Amex board and in 1989 accused the group of leading a smear campaign against him.

His proposed defamation action against a Fortune 500 corporation is an illustration that libel is not restricted to crazies or individuals ... and that it is useful to have the funds to take on the big end of town.

American Express admitted in 1989 to spreading false information, publicly apologized to Safra and paid US$8 million to his preferred charities. Safra subsequently died mysteriously in a fire in Monaco after selling another bank for US$3 billion. In 2005 Safras's widow Lily Safra took action against Empress Bianca (London: Bliss 2005), an alleged roman-a-clef by Lady Colin Campbell

In 1987 Rosalind Runcie, wife of the then Archbishop of Canterbury, featured in articles in UK tabloid the Daily Star. She took action against the publisher, apparently considering that the primate and his wife although public figures were not necessarily fair game. The argument proved persuasive, with the Daily Star reportedly paying substantial damages in an out of court settlement.

     Carson and Caponi

An Australian jury in the 1993 Carson v John Fairfax defamation case awarded the plaintiff $200,000 in general damages and $400,000 in aggravated damages for libel contained in two newspaper articles.

The defamation imputed that Carson, a partner in a law firm, had sought to persuade witnesses to alter testimony, influence the Legal Aid Commission and pervert the course of justice. The NSW Court of Appeal set aside the award as excessive, ordering a new trial on the question of damages and eliciting an appeal to the High Court.

That appeal was dismissed, with the publisher noting that the scale of damages was on the order of damages in recent verdicts in industrial injury cases. The High Court referred to the need to ensure a "rational relationship between the scale of values applied in defamation and personal injury cases" in commenting that damages in defamation cases were vindication of reputation, consolation for personal distress and hurt and reparation for the harm done to reputation.

That advice was highlighted by the judge during the subsequent retrial, who alerted the jury to difficulties in using personal injury payments as a benchmark. The jury awarded Carson damages of some $1.3 million.

Controversial art historian James Beck of Columbia University survived four actions in Italy for criminal libel. He offended restorer Gianni Caponi with forthright criticism of treatment of Ilaria del Corretto's tomb. Beck commented that sculpture by Jacopo della Quercia now looked as if it had "been treated with acid, cleaned with Spic & Span and polished with Johnson's Wax".

     McLibel and Gunns

In 1990 the McDonald's fast food chain served libel writs on five UK activists over a What's Wrong With McDonald's? leaflet, requesting them to retract allegations made in the leaflet and or go to court. Three of the five apologised; Helen Steel and Dave Morris proceeded to defend themselves in what became the longest English trial since the Tichborne case.

The 1997 win for McDonald's in the 'McLibel' case was arguably a pyrrhic victory. McDonald's was awarded £60,000 pounds damages, which the defendants refused to pay. They subsequently took the UK Government to the European Court of Human Rights to "defend the public's right to criticise multinationals", claiming that English libel law was oppressive.

Media critic Marita Franklin somewhat impatiently commented that

what terrible truths emerged about McDonalds from this litigation?  Not very many. Of the seven imputations in the pamphlet, the defence of truth failed for five, and the matters the defendants were able to prove were true were not exactly earth-shattering.

We learnt that hamburgers, like beer and heroin, are not very nutritious, that forests are cut down to make fast food as well as legal documents, and that advertising is designed to lure children into wanting to visit McDonalds (but not, thankfully, into legal offices). ...

McLibel shows how a determined litigant can hijack the court's procedure to turn a straightforward case into a major 'bunfight'. The defendants' decision to plead truth and string the matter out as long as possible was a clever tactic, but that is what it was - a tactic. It's a lot of fun for the defendants, but while they are having their day (or, rather, their two and a half years) in court, court time and facilities are tied up in an unsavoury battle over Ronald McDonald. Has that achieved anything, except to give other, less scrupulous, litigants good ideas?

Arguably the campaign by the British Hedgehog Preservation Society was more successful, if less dramatic. The BHPS launched a campaign in 2001 to persuade McDonalds to redesign its McFlurry packaging, identified as causing "a nasty, gruesome death" to spiny creatures in search of a tasty treat. The Society advised its suporters to be firm, persistent and resolutely polite: "Never criticise the company ... Always show the utmost respect ... Do NOT write angry, threatening or sarcastic letters. Do NOT use foul language".

McLibel has received attention as an instance of SLAPP, with some observers commenting that however tempting it would have been better for McDonalds not to "feed the beast" with publicity.

In Australia logging giant Gunns is suing 20 environmental activists (including Tasmanian Greens Senator Bob Brown) and organisations for $6.3 million, claiming disruption of operations and vilification of the company to overseas customers and local shareholders. The Gunns writ seeks $1.1 million for general damages (for quantifiable loss) and $5.2 million in aggravated and exemplary damages.

     the Barclays, BBC and Sweeney

Reclusive UK billionaire publishers the Barclay brothers appear to have forum-shopped in 1996 action against Lord Birt (then director general of the BBC) and Observer journalist John Sweeney, over comments broadcast on BBC Radio Guernsey and picked up in France. Although the brothers were residents of the Channel Islands, they sued in France for criminal defamation: an illustration that cross-border litigation does not always involve the net.

The Barclays alleged that they had been falsely accused of corruption during the interview. Sweeney was ordered to pay 20,000 in damages by the court of appeal in Rennes. A decade later the brothers sued the London Times, its editor Robert Thomson and media editor Dan Sabbagh for criminal libel over coverage in 2004. Thomson commented

They had many potential remedies, including a letter to the Times, a complaint to the Press Complaints Commission or a case brought in Britain, where the Times is published. Instead they chose to pursue a criminal defamation action

In 1996 they had taken action took under French privacy law against the Observer (available at a few Paris news stands) over a Sweeney article claimed to have "infringed their privacy" and exposed them to the risk of "kidnapping, deprivation of freedom and terrorist attacks" by mentioning their residence in the tax haven of Monacon and that they were "born within minutes of each other on 17 October 1934". The Tribunal de Grande Instance in that case ordered the Barclays to pay the Observer 20,000 francs in costs and damages.

The brothers withdrew the criminal libel action against the Times in 2007, with the paper printing a clarification about the contested article -

In an article on November 3 2004 entitled Twins who swoop on owners in distress we stated that 'rather than specialise in businesses in distress, the Barclays often take advantage of owners in distress to pick up assets on the cheap

It was not our intention to suggest, as some people may have understood it, that the Barclays frequently exploit vulnerable people in financial difficulty in an underhand and unfair way for commercial gain or to impugn their business ethics or integrity.

     Aldington, Macmillan and Tolstoy

Writer Nikolai Tolstoy claimed in The Minister & The Massacres that UK peer Lord Aldington (1914-2000) was a war criminal because of his role as a British army officer in the forced repatriation of some 70,000 people to Yugoslavia after World War II. Aldington's contemporary and former Prime Minister Harold Macmillan was also criticised. Aldington sued over a leaflet by disgruntled property developer Nigel Watts was circulated among politicians, Aldington's friends and the media. Tolstoy had been involved with the leaflet and insisted on being sued as well.

Aldington won a record £1.5m damages and £500,000 costs in his 1989 libel action against Tolstoy. However, the author made 15 appeals to courts in Britain and Europe, gaining a ruling by the European Court of Human Rights that the size of the award violated his right to freedom of expression. Watts was jailed for 18 months in 1995 after repeating the war criminal claim in a new leaflet.

     Ettinghausen

Rugby league player Andrew Ettinghausen sued HQ magazine for imputing he had allowed his genitals to be photographed while in the shower. He was awarded some $350,000 in compensatory damages by a NSW jury in 1991. The court found that the photograph led him to be ridiculed because it showed his genitals to readers of a magazine with wide readership, lowering the public's estimation of him by implying he had authorised the taking and publication of the photograph.

Consistent with comments in the Carson case, critics of the judgement contrasted reputation and industrial accidents, commenting that a worker might receive smaller compensation for losing those parts of his body. In 1993 the NSW Court of Appeal held that the jury award was excessive. Justice Kirby commented that

It is simply impossible to suggest that compensation for harm done to the reputation of Mr Ettinghausen required or permitted general damages greater in magnitude than those awarded to persons suffering profound quadriplegia.

     Lipstadt and Irving

US historian Deborah Lipstadt in her 1993 Denying the Holocaust: The Growing Assault on Truth and Memory characterised David Irving as "one of the most dangerous spokespersons for Holocaust denial" who distorted and manipulated documents "in order to reach historically untenable conclusions", particularly minimising Hitler's involvement in the Holocaust. Lipstadt and her UK publisher declined Irving's offer to settle the consequent defamation action in the UK for £500 and a promise not to reprint Lipstadt's book.

The four-month trial in 2001 cost Penguin and Lipstadt around £2.5m in legal and research costs. It featured testimony by luminaries such Christopher Browning and Richard Evans that arguably demolished Irving's reputation as someone whose interpretation might be controversial but whose treatment of evidence was impeccable.

Evans concluded that not one of Irving's

books, speeches or articles, not one paragraph, not one sentence in any of them, can be taken on trust as an accurate representation of its historical subject. All of them are completely worthless as history, because Irving cannot be trusted anywhere, in any of them, to give a reliable account of what he is talking or writing about. ... if we mean by historian someone who is concerned to discover the truth about the past, and to give as accurate a representation of it as possible, then Irving is not a historian

Irving represented himself in court, somewhat bizarrely emphasising his (but not Lipstadt's) right to free speech. Justice Gray found that Lipstadt's claims were justified. His judgement included the comment that "antisemite" Irving had engaged in "falsification of the record" in a deliberate manner,

motivated by a desire to present events in a manner consistent with his own ideological beliefs even if that involved distortion and manipulation of historical evidence.

In 2005 he was arrested while visiting Austria to address a far-right student group in Vienna. Austrian authorities were unimpressed by bizarre quips that "more women died on the back seat of Edward Kennedy's car at Chappaquiddick than ever died in a gas chamber in Auschwitz" and had earlier put Irving on notice that he risked being arrested on sight.



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