This page highlights further offline defamation cases in Australia,
the UK and other jurisdictions.
It covers -
and Hustler - satirizing the great & godly
in the US
Amex and Runcie - 'big money takes on corporate misbehaviour?'
and the Archbishop's wife proves that she isn't fair game
and Gunns - a case of "don't feed the beast"?
Barclays, BBC, Times and
Sweeney - choosing a forum in cross-border action
Tolstoy and Watts - justice or persecution?
and HQ - reputation and the scale of damages in
and Irving - taking on a Hitler apologist
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
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
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
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
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?
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"
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
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
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 -
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.
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
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.
that not one of Irving's
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
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
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.
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.
(offline defamation cases 3)