Blogging and Online Defamation – Gluyas v Best [2013] VSC 3 (24 January 2013)

Defamation - Gluyas v Best [2013] VSC 3 (24 January 2013)">

A Victorian man with Aspergers Syndrome, Phil Gluyas, has had his claim for online defamation  against a defendant from the United States upheld by the  Supreme Court of Victoria.

Gluyas was awarded a sum of $50,000 in damages in addition to interest under s60 of the Supreme Court Act 1958. (Gluyas v Best [2013] VSC 3)

Glyuas claimed damages for defamation arising from a number of articles and defamatory material uploaded by the defendant onto the internet through various websites.

As the defendant resided in Londonderry, New Hampshire,  the Plaintiff relied on Rule 7.01 of the Rules of the Supreme Court to serve the writ on the defendant outside of the jurisdiction, however the defendant elected not to enter an appearance to the writ.

Therefore  the Plaintiff had to seek leave of the Court in order to proceed with his defamation claim pursuant to r7.04 of the Rules  To be granted leave under r7.04 of the Rules of the Supreme Court, a defendant needs to establish that the tort of defamation was committed by the defendant in the  State of Victoria (7.01(1)(i)).

With regard to material published on the internet, in order to establish publication by the defendant, a plaintiff has to prove that the defendant uploaded material onto the internet.  In the controversial Dow Jones & Co Inc v Gutnick case, the  Court held publication occurs at the place in which material is made available to the reader, namely when it is downloaded onto a person’s computer and accessed via a web browser from the server. Therefore publication occurred in Victoria when readers viewed the defamatory article in question in the online edition of the Wall Street Journal.

In order to prove publication the plaintiff had to also establish, to the court’s satisfaction, that at least one person downloaded  and read articles published by the defendant on the blogs www.philgluyas.blogspot.com and www.hatingautism.blogspot.com.  Based on the evidence the plaintiff led, it was accepted by the court that the defendant had uploaded the material about the plaintiff onto a number of websites.

The defendant wrote to the Court indicating he did not intend to enter an appearance in the case to defend the proceedings brought against him, and therefore it proceeded as an undefended matter before Kaye J.

The plaintiff had created and maintained a number of websites upon which he published his thoughts concerning rights of individuals suffering from autism spectrum disorder. The plaintiff had attached to his website a forum, which may be accessed by others who are referred to as members.

The plaintiff had been involved in a longstanding dispute with the Plaintiff related to the causes of Autism, the defendant maintaining the disorder was caused purely by mercury poisoning, the Plaintiff that Autism was congenital.

The difference of opinion between the Plaintiff and the Defendant resulted in the Defendant posting extraordinarily vitriolic and derogatory material about the Plaintiff personally, which His Honour had no difficulty in finding to be highly defamatory of the Plaintiff.

The title and content of the articles were inflammatory, being titled “Phil Gluyas’ history of brutality”, “Severely deranged mental case sues me again”, “Phil Gluyas of Australian Football abuses autistic women”, “Is Phil Gluyas the next Adam Lanza?”, referring to the young man who was thought to have Aspergers and shot dead a number of students and staff in the recent Connecticut shootings.

The defamatory imputations pleaded by the Plaintiff arising out of the articles were regarded by the Court as being of a serious nature, and included the defendant drawing analogies between the Plaintiff and Hannibal Lector. The defendant’s material implied the Plaintiff was a seriously disturbed person who had a violent history of physical abuse, posed a risk of danger to others, was a paedophile, pursued young girls and boys, and had been banned by an Australian Court due to his mental illness and violence from ever working again in his life. The Judge found that the material uploaded by the defendant bore the defamatory imputations pleaded by the Plaintiff.

Kaye J was also satisfied by the evidence led by a third party that they had downloaded and read the articles in Victoria, whilst the plaintiff proferred evidence of responses on the internet, and to him, by other persons in Victoria, regarding some of the defendant’s publications. The Judge permitted him to lead hearsay evidence in this regard, being evidence which he ruled fulfilled the criteria in s64 of the Evidence Act 2008 (Vic).

Although the plaintiff had only established limited publication in Victoria of the material the defendant uploaded to make out his cause of action in defamation, in assessing damages, the Court took into account as a relevant consideration, case law which factored in damage to his reputation which was likely to  to spread beyond the original publication along the human “grapevine”.

Kaye J also awarded a greater sum of damages due to the conduct of the defendant which aggravated the harm and distress caused to Guylas, as attested to by his Psychiatrist. This conduct consisted of the defendant writing to the Court and re-iterating some of the defamatory allegations in his letters and continuing to engage in internet defamation after the proceedings had been filed by the Plaintiff.

In assessing whether certain publications are defamatory  a Court must be satisfied that they bear defamatory imputations, which would tend to lower the plaintiff in the estimation of right thinking members of the community. The audience consists of hypothetical ‘ordinary reasonable readers’ and what they would understand the article to be stating. The hypothetical reasonable man is not one who lives in an ivory tower, is avid for scandal, but is a person who is worldly enough to read between the lines.

Glyas had previously brought a case in VCAT for discrimination, attempting  unsuccessfully to force Google to remove a blog maintained by a person associated with the defendant called “hatingautism.com”, which he alleged was discriminatory towards people suffering from autism. (see Gluyas v Google Inc (Anti-Discrimination) [2010] VCAT 540).

However Gluyas’ action in VCAT under the Equal Opportunity Act (2010) Vic was unsuccessful, the presiding Member ruling that the Victorian Act cannot regulate conduct which occurs outside of the jurisdiction of Victoria.  One of the legal differences noted between the Dow Jones case and Gluyas’ case in VCAT was that in respect of the Google blogspot blog, Google was deemed to have merely supplied a means for a person to publish, as opposed to having published the material itself.

As part of his claim in the Victorian Supreme Court, Gluyas  sought an injunction requiring the defendant to remove  the offending materials uploaded by him. However, standing in the way of the success of that Application were similar difficulties which had previously been dealt with by a NSW Court on an interlocutory Application (Macquarie Bank v Berg).  In this Application for a preliminary injunction restraining publication,  the Judge was loathe to grant an injunction which would in effect impose NSW law on the rest of the world.

Internet defamation is predominantly concerned with the application of the principles which govern the application of the tort of defamation, however due to the borderless nature of the internet, there are some practical issues to overcome and litigation can prove costly to successfully sue for defamation.

There are also issues of proof to overcome as to whether a defendant was responsible for uploading material and establishing whether the material in question was downloaded and read in the jurisdiction the claim is bought in, usually where the Plaintiff has a reputation. In terms of an award of damages, the extent of internet publication has sometimes been the subject of forensic expert evidence, particularly in cases of Twitter defamation – see Cairns v Modi (2010)

These cases show that online defamation  is likely to be the subject of ongoing interest and contention for bloggers, defendants and free speech advocates.

Legislation enacted in the United States also requires that any judgement obtained for defamation be registered in a US court and be assessed against US law in order to be recoverable.

 

 

Related posts:

  1. Anonymous Online Commentary And Defamation
  2. Britain may reform online defamation laws
  3. Twitter Defamation – Cairns v Modi [2010]
  4. Online defamation case alleging civil conspiracy dismissed
  5. Online Defamation And Website Corrections – Flood v Times Newspapers Limited
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