In the controversial decision of Rush v Nationwide News, Justice Wigney of the Federal Court of Australia found that the Daily Telegraph‘s reporting of the Geoffrey Rush scandal was defamatory and awarded Mr Rush a substantial damages payout. Michael Daniel, Nicola Nygh, Claudia Dela Cruz and Aaron Irving discuss the implications of the decision for the law of defamation in Australia.
Over the past 18 months, defamation proceedings brought by Rebel Wilson and Geoffrey Rush have dominated Australian news headlines. The famous plaintiffs both sought to use the law of defamation to obtain compensation for the harm to their reputations caused by sensational allegations published by news organisations.
The Rush case was seen as especially controversial given the serious sexual assault allegations made against powerful men in the entertainment industry (the ‘Me Too’ movement) just prior to the Rush allegations. It inspired significant debate in the media as to the appropriateness of using the law of defamation to silence sexual assault allegations.
However, as Justice Wigney’s judgment shows, news organisations in the ‘Me Too’ era must conduct proper due diligence of any allegation reported to them, fairly report both sides of the dispute and refrain from exaggerating or sensationalising the allegations in order to avoid making hefty payouts to the subjects of the allegations.
With the judgment now subject to appeal, the ongoing saga raises a serious question as to whether our defamation laws are an effective mechanism for vindicating individuals’ reputations. The lengthy hearing resulted in significant collateral damage to both Mr Rush’s reputation and that of the previously anonymous complainant. Perhaps some of that collateral damage could have been avoided by laws limiting the evidence that can be relied upon to establish the truth defence to information known to the publisher at the time of publication. In addition or alternatively, a system for confidential arbitration of defamation claims could be established.
In December 2017, Rush commenced proceedings against Nationwide News – the Daily Telegraph’s owner – in respect of defamatory publications published by the masthead, being:
The publications concerned Mr Rush’s alleged conduct during his time as the titular character in the stage production of King Lear. In particular, they reported allegations by Ms Norvill – who played King Lear’s daughter Ophelia – that Mr Rush touched her inappropriately on stage and otherwise acted in a sexually suggestive manner.
In the proceedings, Mr Rush alleged that the Daily Telegraph’s publications conveyed a number of defamatory imputations. These include that:
The articles were published in the midst of the ‘Me Too’ movement and when allegations of sexual assault against powerful men in the entertainment industry were receiving significant international media coverage. Famous personalities such as Harvey Weinstein, Kevin Spacey and Don Burke had been implicated. Mr Rush relied in part on these ‘extrinsic facts’ to support his argument that the publications were defamatory because they equated the allegations against him with those more serious allegations.
Mr Rush commenced proceedings on 8 December 2017, only a week following the publication of the articles. Mr Rush sought to have the matter dealt with expeditiously so that he could vindicate his reputation while the defamatory imputations were still fresh in the mind of the public.
In its defence, Nationwide News argued that the publications were incapable of conveying the imputations alleged and relied upon two defences under the Defamation Act 2005 (NSW) – justification/ substantial truth (section 25) and qualified privilege (section 30). After a number of interlocutory applications alleging deficiencies in Nationwide News’ pleadings, the defence of qualified privilege was dropped.
The trial commenced on 22 October 2018 and took place over three weeks. Ms Norvill and castmate Mr Winter were called as witnesses by Nationwide News. Mr Rush took the stand to refute the allegations. The director of the production, Mr Armfield, and actresses Ms Nevin and Ms Buday were also called to give evidence for Mr Rush.
On 11 April 2019, Justice Wigney handed down judgment in favour of Mr Rush, finding that:
In respect of the pre-publication advertising, Nationwide News effectively conceded that it conveyed the imputation that Mr Rush had engaged in scandalously inappropriate conduct in the theatre. However, his Honour found that – even in the light of the extrinsic facts – the ordinary reader of the material would not have understood it to mean that Mr Rush had engaged in misconduct of a sexual nature.
In respect of the 30 November articles, Justice Wigney found that the sensational use of the headlines ‘King Leer’ and ‘Star’s Bard Behaviour’, the photo of Mr Rush as King Lear on the front cover, and the juxtaposition of the article about Mr Rush with an article about allegations made against Don Burke, when considered in the light of the extrinsic facts (‘Me Too’), conveyed that Mr Rush was a pervert and a sexual predator and that he had engaged in inappropriate behaviour during the production of King Lear.
In respect of the 1 December articles, Justice Wigney found that the further information provided in those articles, including reporting of conversations with cast members and theatre company executives which were misleadingly represented as corroborating the victim’s version of events and contradicting Mr Rush’s, conveyed all of the imputations conveyed by the 30 November articles. In addition, his Honour accepted that the articles conveyed the following further imputations:
Substantial truth defence
Nationwide News relied on eight alleged incidents to support its claim that the imputations conveyed by the material were substantially true. Justice Wigney found – on the balance of probabilities – that six of the allegations were unfounded and that two, while true, were not apt to support the defamatory imputations.
The six unfounded allegations referred to a number of instances of inappropriate touching of Ms Norvill by Mr Rush in the course of various rehearsals and performances of King Lear. Justice Wigney found on the balance of probabilities that these did not occur because Ms Norvill was generally a witness ‘prone to exaggeration and embellishment’, her accounts were at odds with contemporaneous statements she made about Mr Rush and her evidence was largely uncorroborated even when the incidents alleged occurred in public in front of hundreds of people. To the extent her account was corroborated by Mr Winter, his Honour found that Mr Winter was not a credible or reliable witness. By contrast, his Honour considered Mr Rush, Mr Armfield, Ms Nevin and Ms Buday’s testimony to be reliable.
In relation to the incidents Justice Wigney accepted to be true, his Honour found that Mr Rush’s remark to a journalist that he had a ‘stage-door Johnny crush’ on Ms Norvill was intended as a compliment of Ms Norvill’s acting ability and would be considered as such by most people, when one considered the context.
His Honour further found that a text sent by Mr Rush saying he thought of Ms Norvill ‘more than is socially appropriate’ was a ‘throwaway line or joke’ referring to the fact that Mr Rush was sorry he missed one of Ms Norvill’s performances. It did not support the imputation that Mr Rush was a pervert, nor any other defamatory imputation.
Mr Rush claimed two heads of damages: first, general damages to compensate for his personal distress and suffering; and secondly, special damages to compensate for his lost earning capacity.
Damages for defamation are capped at just shy of $400,000 in New South Wales, unless the plaintiff establishes an entitlement to aggravated damages. Aggravated damages may be awarded where the defendant’s conduct was in bad faith, or otherwise improper or unjustified. Justice Wigney found that Nationwide News’ conduct in publishing the articles justified an award of aggravated damages because the articles were sensationalist, knowingly misleading and calculated to harm Mr Rush’s reputation. Nationwide News’ conduct of the proceedings was also found to be improper and unjustifiable.
Taking into account Nationwide News’ unsatisfactory conduct and the extent of the personal distress suffered by Mr Rush, Justice Wigney assessed Mr Rush’s general damages at $850,000.
His Honour was also satisfied that Mr Rush has and would in the future suffer a loss of earning capacity as a result of the publications. Further submissions have been sought from the parties as to the quantum of special damages, but given Mr Rush’s pre-publication status as an ‘actor in demand’, one can expect the sum to be considerable.
Justice Wigney was aware of the broader debate in Australia about sexual misconduct by (mostly) men in positions of power, and the appropriateness of the use of the law of defamation to silence such allegations. His Honour noted:
The role of the Court is, in simple terms, to apply the law of defamation in Australia to the case as pleaded by the parties and the facts found to have been proven. … It is not for the Court to provide some broader social commentary about sexual harassment in the theatre or entertainment industry in Australia, or the #MeToo movement, or the effect that Australia’s defamation laws may have in relation to that movement.
In the end, the deficiencies in Nationwide News’ case cannot be attributed to any forensic disadvantage suffered by victims of sexual harassment. Indeed, in assessing Ms Norvill’s evidence, Justice Wigney had due regard for the fact that victims of sexual harassment often do not have detailed evidence to support their allegations.
Rather, Nationwide News’ case failed because – even if Ms Norvill’s evidence were taken at its highest – the Telegraph’s most sensational claims about Mr Rush had no factual basis. This was partly because the Telegraph chose to publish the allegations without Ms Norvill’s consent or cooperation. In Justice Wigney’s words, ‘this was, in all the circumstances, a recklessly irresponsible piece of sensationalist journalism of the worst kind’.
This saga raises an important question as to whether our defamation laws are an effective mechanism for vindicating individuals’ reputations. Despite the substantial damages payout, the serious allegations against Mr Rush were ventilated in great detail in open court, causing his reputation to be damaged even further. The proceedings took 16 months from commencement to judgment which is certainly not expeditious.
And of course, Ms Norvill, who had nothing to gain from the proceedings and in fact wanted to keep her complaint private, may have suffered the most from the proceedings.
Photo by Bank Phrom on Unsplash