How easy is it to obtain damages for economic loss caused by a defamatory article?
Mostly, the damages available to a defamation plaintiff are damages for harm to reputation and hurt to feelings. These are, for the most part, known in personal injury cases as “general damages”; which are usually damages for pain and suffering.
Damages in defamation cases
Occasionally, a claimant in a defamation case brings an action in which s/he makes a claim for damages for economic loss. The most prominent of these claims of recent times is that brought by Rebel Wilson against Bauer Media Pty Limited, in respect of an article that was published in several magazine publications, most prominently Woman’s Day.
The defamation claim by Ms Rebel Wilson has attracted attention since commenced. The Australian-born actor, best known for her role in the Pitch Perfect films, alleged Bauer Media Pty Ltd had defamed her in a series of articles published in May 2015.
The imputations pleaded by Rebel Wilson included her being a liar, a person who lied about her real name, age, aspects of her upbringing and events in her life to boost her Hollywood career. Ms Wilson claimed that not only did she suffer emotional hurt and damage to her reputation, but that she lost opportunities of being casted as leading roles in subsequent productions, which resulted in economic loss.
When the case was heard in 2017 by the Supreme Court of Victoria (equivalent to the Supreme Court of New South Wales), Ms Wilson was awarded $4.7 million. $3.9 million of this sum was attributed to her economic loss. Ms Wilson argued that the articles published by Bauer Media had effects internationally and in particular in the United States, and eventually caused Ms Wilson’s loss of career opportunities. This was accepted by the trial judge.
This decision considered evidence lead by Ms Wilson. This included:
- The “expert opinion” of Mr Peter Principato, a talent manager, who said that Ms Wilson was highly likely to have received several offers from studios following the release of Pitch Perfect 2 in 2015, each valued around USD $5 million, and;
- Another talent agent, Ms Sharon Jackson’s gave evidence that she observed republications of the defamatory articles in the United States, and heard members of the community in Hollywood discussing the articles.
In 2018, Bauer Media Pty Ltd appealed to the Court of Appeal of the Supreme Court of Victoria, on grounds that the damages awarded in 2017 were based on a number of improper inferences. Analysing the evidence of Ms Wilson, the Court of Appeal found that:
- Despite the reliance on Mr Principato’s evidence, he had apparent ignorance of Ms Wilson’s acting career prior to her role in Pitch Perfect 2;
- There were frailties in Ms Jackson’s evidence, as she did not identify any specific examples of projects or opportunities Ms Wilson had lost due to the articles, and she did not know of the articles until she was contacted by Ms Wilson herself, and;
- There was limited evidence as to the discussion of the defamatory article in the United States outside of the 2 week period after the articles were published.
The Court of Appeal concluded that Ms Wilson had failed to establish any existence of lost opportunities or their causation by the articles complained of. Ms Wilson’s damages were significantly reduced from $4.7 million to $600,000.
Rebel Wilson’s damages were essentially reduced to damages for hurt to feelings, harm to reputation and aggravated damages with no economic loss. She also received interest.
Significance of the decision
Bringing a claim for economic or wage loss in a defamation case is difficult to prove. This case is a prime example of how difficult it is.
Nonetheless, the damages awarded to Rebel Wilson for hurt to feelings and harm to reputation were significant.