The thorough victory by The Daily Telegraph in a defamation case involving sports scientist Stephen Danks should give media outlets more confidence when defending defamation actions, according media law expert Peter Bartlett.
The Daily Telegraph successful defended almost all aspects of Mr Dank’s defamation case relating to a series of articles that revealed he had administered banned peptides to Cronulla Sharks NRL players.
The four-person jury rejected claims that newspaper articles had defamed Mr Dank, because the imputations were “substantially true”. This included the imputation that peptides injected by Mr Danks accelerated the death of one player, Jon Mannah, from cancer.
It was the first time a court had found Mr Danks had administered the banned peptides to Cronulla players.
The jury did vote in Mr Dank’s favour over one element of his case: that he did not inject blood-thinning agent Warfarin.
Despite this finding, Justice Lucy McCallum awarded no damages and ordered Mr Dank to pay the defendant’s legal fees. The Daily Telegraph reported their legal fees were in excess of $2 million.
In a summary of her judgment on this aspect, Justice McCallum said while it was untrue that Mr Danks injected players with Warfarin, “the sting of the two Warfarin imputations has been proved to be substantially true”.
“The substance in question was not Warfarin; it was a substance intended as a feed supplement for horses. It might have sounded harmless but it had not been appropriately tested for therapeutic use by humans. It should not have been used on football players,” she said.
Mr Bartlett, a Minter Ellison partner who works with range of local and international publishers including Fairfax Media, said it was a welcome and rare decision.
“In Australia, because of the nature of our defamation laws, it is very, very, very rare that a media defendant would successfully defend a defamation action,” he said.
“I don’t think it really is a precedent for other cases. It will give a little more confidence to media defendants that in certain circumstances they may be able to successfully defend a defamation case.
“However, the reality is that these days the legal costs involved in fighting a case to judgment are so high that even though the media defendant may have some very good arguments, it will sometimes seek a compromise to settle the case to save its exposure to legal costs.”
David Rolph, an associate professor at the University of Sydney Faculty of Law specialising in media law, said the costs associated with defamation cases could also be a deterrent for the plaintiff.
“Defamation is not as it used to be because for the last 10 years in Australia we’ve had caps on the damages you can recover, there are limits on the amount of money you can recover,” he said.
Mr Rolph also said it was difficult to judge whether the Dank v Nationwide News (publisher of The Daily Telegraph) outcome was a step in the right direction for defamation law.
“The difficulty about making an assessment about it is that everyone’s reputation is unique to him or her, so it really is dependent upon the reputation of the particular person who is suing.”
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