With an endless list of apps and websites at our fingertips, it has never been easier to share an opinion with the online world through posts, comments and reviews.
But be warned: the Federal Court of Australia's recent decision in Nettle v Cruse [2021] FCA 935 provides a timely reminder that if you take to the Internet to attack someone's reputation (even if you think you are doing so anonymously), you may be left with a hefty damages bill.
What led to the defamation claim in Nettle?
Dr Warwick Nettle is a highly regarded and successful plastic and reconstructive surgeon based in Sydney who specialises in cosmetic facial plastic surgery.
Ms Catherine Cruse had arranged for Dr Nettle to perform certain surgery on her, and completed the necessary paperwork. Dr Nettle eventually decided to not treat or perform any operation on Ms Cruse after being approached and cautioned by another doctor, a decision the Court considered was "entirely professionally appropriate and justifiable".
He commenced proceedings against Ms Cruse in the Federal Court in March 2019 following what the Court described as an "appalling and entirely unjustified and unjustifiable negative internet campaign" unleashed by Ms Cruse throughout 2018. Defamatory posts even continued after Dr Nettle had obtained an apprehended personal violence order against Ms Cruse in August 2018.
Ms Cruse started with three reviews about Dr Nettle and created a defamatory webpage about him, all under fake names. The posts referred to Dr Nettle, amongst other things, as an "unethical doctor", a "compulsive liar", "the devil himself", a "cheater", "a quack", cited "inhumane medical care" and falsely depicted "botched" plastic surgery performed by Dr Nettle (using images that neither depicted Ms Cruse or any patient of Dr Nettle). Another post also referred to Ms Cruse as a "mistreated patient" who had allegedly had her skin burned during a procedure performed by Dr Nettle. It was alleged that Dr Nettle would not keep patient records confidential and that his behaviour was "disgusting" and "illegal".
Although Ms Cruse had attempted to publish on an anonymous basis, the Court was satisfied from the evidence that she was responsible for each of the publications. This partly arose from her communications with Dr Nettle's solicitors when she accepted a $3000 payment in exchange for a deed of release (which she breached) and from the use of false names or monikers that were thinly disguised variations of her name or initials. The court readily inferred that Ms Cruse "was unwilling to put her name to the publications because she well knew that they were full of falsehoods and misrepresentations".
The Court described her attacks as "full of falsehoods, gross misrepresentations of the facts, entirely unjustified criticisms of Dr Nettle and the publication of statements, and in some cases images, that appear to have been calculated to inflict maximum damage on Dr Nettle's professional reputation".
Ms Cruse did not file a defence to the proceeding and did not appear at any case management hearings or at the final hearing. The matter proceeded in her absence, resulting in judgment for Dr Nettle who had led evidence which established liability and which was also relevant to an assessment of damages. An interim injunction to refrain further publications was also awarded, prior to judgement.
How does the Court assess damages in defamation cases?
In Nettle, Justice Wigney referred to the general principles applicable to the assessment of damages set out in Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496, and confirmed that the three purposes of the award of damages for defamation are for the:
- consolation for hurt feelings,
- recompense for damage to reputation, and
- vindication of reputation.
Before Ms Cruse's campaign against him, Dr Nettle could recall there having been only three negative reviews and he had enjoyed a five star Google review rating. The Court described his prior online reputation as "exceptional".
When applying the Rush principles to the Nettle case, the Court considered that it was important to observe that:
- the publications caused Dr Nettle great distress and anxiety and took a dramatic emotional toll on him over an extended period;
- Dr Nettle's workload had declined significantly following the publications and there was direct evidence from patients of their views of Dr Nettle being adversely impacted by the posts;
- Dr Nettle's personal and professional life depended on his reputation for honesty and competence as a plastic surgeon;
- Dr Nettle worried (with some justification) about the safety of his family and staff; and
- Dr Nettle's reputation required vindication.
Justice Wigney found that the four publications were likely to have been not only accessible to, but would have been accessed by, many of Dr Nettle's patients as well as prospective patients who searched the internet looking for information on doctors who perform surgery such as that undertaken by Dr Nettle. It was also inferred that the posts would have been the subject of extensive gossip, including online gossip, particularly during 2018. Accordingly, the conduct by Cruse and the consequent damage to Dr Nettle's reputation was characterised as "extreme" for this type of case.
Relevance of aggravated damages to defamation cases
The principle that aggravated damages may be awarded where the conduct of the respondent has been found to be improper, unjustifiable or lacking in bona fides further guided Justice Wigney's award of damages in the current case. It was also noteworthy that that some of the publications remained online and could not be effectively taken down.
The Court was satisfied in the circumstances that there could be little doubt that the hurt and damage to Dr Nettle was significantly aggravated and exacerbated by the scandalous nature of the publications in question and the obviously malicious intent of Cruse. As a result, Justice Wigney was satisfied that Dr Nettle was entitled to an award of aggravated damages.
As the Court noted in Nationwide News Pty Ltd v Rush (2020) 380 ALR 432, where aggravated damages are appropriate, the statutory "cap" on compensatory damages (which was $432,500 at the time of judgment in NSW) may be disregarded, and a higher award may be made.
Noting that each award of damages is unique to the circumstances of the case at hand, the Court had some regard to other cases involving defamatory negative reviews or allegations about the honesty and competence of professionals including doctors, for example:
- $200,000 in one case involving a negative Google reviews about a lawyer;
- $320,000 in another case for a publication with an additional $160,000 for a separate Google review against the same professional; and
- $530,000 (including aggravated damages) in a case involving a Google review against a plastic surgeon that had alleged mistreatment and incompetence.
These awards should have been enough to serve to provide a cautionary warning – but Ms Cruse is unlikely to have been aware of them.
In this case the Court ordered that Ms Cruse pay a total of $450,000 in damages to Dr Nettle, finding that the defamatory publications struck at the very heart of Dr Nettle's life's work. (Dr Nettle did not press for special damages or damages for economic loss). The Court also permanently injuncted Ms Cruse from republishing her defamatory allegations and ordered her to pay Dr Nettle's costs of the proceeding – which would likely be a substantial sum.
Key takeaways for reviews of professionals
It is always important to be vigilant about the imputations you make when making posts that may impact someone's reputation. Additionally, malice will undo the availability of most defences and open the door to an increased damages award.
While the outcome of each defamation case will turn on its own particular facts, baseless attacks against professionals who rely upon their reputations for their livelihood are likely to give rise to a sizeable award of damages. Where the attack lacks bona fides, is improper, scandalous or excessive in its attack, then one can expect the statutory cap on damages to be lifted by an award of aggravated damages.
Additionally, if you are the administrator of a public social media account that others can post to, you need to be aware that you can also be held liable as a publisher of defamatory comments posted by members of the public who you give access to. Vigilance is required to monitor and moderate such accounts in order to limit the risk of the original publisher's liability for defamation being visited upon you – particularly if you may be seen as a better defendant if you have deeper pockets than the original publisher.