Rebel Wilson $4.5M damages award might not survive an appeal

By Natalie Hickey, September 13, 2017

I am not confident that Justice Dixon’s judgment awarding Rebel Wilson $4,567,472 in damages for defamation by Bauer Media would survive an appeal.

The general damages award of $650,000 looks safe.  However, the basis for the special damages award of $3,917,472 does not look sufficiently strong.  A Court of Appeal of three judges might be less inclined to accept the holistic approach applied by Dixon J.

Bauer Media is currently in its litigation bunker considering next steps. Viewed from afar, one option might be to appeal the special damages award and nothing else.

From Rebel Wilson’s perspective, even if such an appeal were to succeed, an award of $650,000 in damages (plus likely costs) is one of the biggest such defamation awards in Australia in the last 10 years, if not “the” biggest.

Introduction

From the judgment, Justice John Dixon of the Supreme Court of Victoria is not likely a closet reader of gossip mags in the doctor’s surgery.  His take down of Bauer Media in his judgment awarding Rebel Wilson $4,567,472 in damages suggests a disgust for the gossip magazine that did not help its cause:

“Bauer Media emphasized the nature of the publications. They submitted the publications were light entertainment pieces published for a local, Australian audience.  The defendants submitted that the plaintiff’s comments in her interview with Julia Zemiro as part of the Home Delivery program confirmed the submission. The relevant sting of each article was not overly serious… I disagree.”

The litigation concerned one article that appeared in Woman’s Day magazine, and seven articles that appeared on the websites of Woman’s Day, Woman’s Weekly, New Weekly and OK Magazine over a three-day period in May 2015.  As the jury found, the articles falsely imputed that Ms Wilson was a serial liar who had told lies about her real name, age, aspects of her upbringing and events in her life.

Bauer Media, the publisher of the articles, had denied Ms Wilson’s claims of defamation, offered no apology, and then exposed itself to what the judge called a high risk strategy in defending the litigation.  This included raising defences of substantial truth, triviality (essentially the failed ‘light entertainment’ point) and qualified privilege (that there was a relevant duty / interest correlation in the public being told the story).  The jury rejected all of these defences, and a technical point on qualified privilege held over for the judge was also rejected.

So, Bauer Media lost and the multi-million dollar question then became, by how much?

A. General damages

Under defamation law, and unlike most areas of law, a concept of general damages exists which is essentially a bucket of money to be paid to the plaintiff for the hurt feelings, distress and humiliation he or she has suffered.  I say, “unlike most areas of law” because this is a finger waving exercise far more generalized than the typical task of calculating damages.

The concept of general damages in defamation law is essentially the court’s acceptance of the fact that damage to reputation is a particularly difficult thing to prove.  Accordingly, one has regard to factors such as the nature of the publication, the audience, whether it was in the professional or personal context (the former justifying a higher award), the breadth of the publication, and previous comparable decisions, before landing on a figure that is not grounded in science, but tends to make practical sense.

General damages are subject to a statutory cap of $389,500, although there is scope to remove this cap if the plaintiff can prove aggravated damages (i.e. that the defendant’s conduct in connection with the publication is sufficiently improper that it has ‘aggravated’ the harm suffered by the plaintiff).  Here, the judge did find that Bauer Media’s conduct aggravated the harm, removed the statutory cap accordingly, and – voila-  the general damages figure became $650,000 rather than $389,500.

The findings said to give rise to this very serious award appear to justify it:

• Rebel Wilson had spent 17 years building up her international career.
• She had made it in Hollywood.
• Ms Wilson’s reputation as an authentic, candid and honest down-to-earth Australian, was key to her identity and appeal.
• Her reputation with moviegoers was central to her capacity to win lead or co-lead acting roles in which she would carry the movie.
• By its articles, Bauer Media branded a “hardworking and authentic Australian-born actress a serial liar who had fabricated almost every element of her back story”.
• She was “held up to be a phony and a fake”.
• It was a sustained attack over three consecutive days and four distinct titles.
• The readership of Woman’s Day magazine is 1,514,000 people. The article on the Woman’s Day website attracted 42,187 page views within Australia.  The other six online articles attracted a combined total of 14,724 page views within Australia.
• Ms Wilson was devastated and shattered.
• Further, the circumstances in which the articles were published were held to be malicious, having regard amongst other things to Bauer Media’s desire to make profits. The story was released to cash in on the hype surrounding Rebel Wilson upon the release of Pitch Perfect 2.
• The story was not a fun, light-hearted piece, and to suggest this was highly naïve.
• There were significant aggravating features including: (a) Bauer Media’s failure to apologise to Ms Wilson, (b) its maintenance of its defences including truth when it ought to have been apparent that Ms Wilson was not a serial liar, and (c) Bauer Media’s adoption of an unjustified approach to the disclosure of sensitive and confidential information regarding the remuneration Ms Wilson received for films.

Accordingly, if the judgment were to stop there, this would already be a very big story.

B. Special damages

General damages are at large. Special damages are not. In other words, there is no finger waving.  You have to prove them.  Ms Wilson had to show she had suffered a particular loss, specifically, the earnings lost from roles that did not come her way after the articles were published.

Ms Wilson pursued a circumstantial case based on lost opportunity.  At its heart was the argument that there was no plausible explanation for the fact that she was not offered any lead or co-lead roles of the kind expected following the release of Pitch Perfect 2.

In support of her special damages claim, Ms Wilson relied on an independent expert (an LA-based talent manager) and also her own talent agent on the surprising lack of roles after Pitch Perfect 2.  The judge approached this evidence cautiously but essentially relied on it to fortify his own conclusion, which was that the impugned articles caused the roles to dry up.  As he put it, the trajectory of the plaintiff’s career abruptly stopped.

The question though, is one of causation.  Was there really no other plausible explanation for the fact that things came to an abrupt halt? Or could the fickleness of fame have been the reason?  True it is, Ms Wilson could carry a film.  However, her genre was quite specific.  As Dixon J observed, “she was respected as an actor in the medium of family entertainment, particularly in comedic roles”.

She had also become expensive. As the independent expert retained by Ms Wilson confirmed, she faced competition. Amy Schumer possessed a strong female comedic voice and was significantly cheaper.  For example, when Amy Schumer won the role in Snatched, she commanded a fee of half what Ms Wilson commanded.  Could it be that Ms Wilson was simply beaten for roles by the new, less expensive flavour of the month?

Where there might be, at the least, an alternative explanation, there was no tangible evidence that made the plaintiff’s argument the plausible one.  No one said anything to her, or perhaps more surprisingly, to her talent agent, about why roles were drying up.  Her talent agent referred to the lack of interest as a mystery.  Yet no one felt like making at least one frank, off the cuff explanation for wanting to hold off booking Ms Wilson for a while?  One would think it would be easier to do this to Ms Wilson’s representative than to her face.  However, nothing at all was said.

This lack of direct evidence was attributed to the “grapevine effect”.  The grapevine effect is what the older cases call ‘a poison lurking in a hiding place’.  Justice Dixon referred to this analogy as ‘quaint’, noting that it does not do justice to the effect of the ‘world wide web’ in the 21^st Century.  It’s the difficult-to-prove gossip that nevertheless has a detrimental effect on a person’s reputation, the internet having the capacity to spread this gossip wider than ever before.

Bauer Media argued that the grapevine effect is a concept suited only to a general damages claim.  It’s not sufficiently specific to be regarded as a reliable basis for special damages, it said.  The judge disagreed.

The better view might be that, whilst the grapevine effect should not be disqualified from the special damages context, it does point to a problem of proof.  In other words, if you have little more than the grapevine effect to rely upon for your special damages claim, you are walking on thin ice.

Yet, despite any direct evidence showing that this famous actor’s career had dried up because of the impugned articles, the judge found that Ms Wilson was entitled to an initial damages award of US$15 million.  He then discounted this amount by 80% because, once again, there was no evidence on relevant deductions (such as accounting evidence on taxation etc.) to assist him.

This essential lack of evidence was the basis on which a special damages award of US$3 million was arrived at, that was then converted into Australian dollars.

The contrast is stark between this generalized reasoning, and the micro-analysis of damages evidence contained in many other judgments.  An appellate judge inclined to the micro-analysis may not be enthused by this broad brush approach.

C. Who is “the public” to be convinced by this substantial damages sum?

The summary of judgment available on the Supreme Court website contains this rather curious quote from the decision, immediately after the $650,000 plus $3,917,472 is set out, and underneath the heading “General damages”:

“Only a substantial sum in damages could convince the public that Ms Wilson is not a dishonest person and bring home the gravity of the reputational injury established before the jury.  In the full media glare, Bauer Media’s defence of this case attempted to characterize its articles as true or as trivial or not likely to be taken seriously.  Unless substantial damages are awarded there is a real risk that the public will not be convinced of the seriousness of the defamation, but will rather wrongly conclude that the articles were trivial or not that serious.  The jury comprehensively rejected the defences and only a substantial damages award can now vindicate the plaintiff.”

By appearing under the heading, “General damages”, the judge is signaling, I’m making this comment only about the $650,000.  However, is that really so?  Or could it be the case that the comment was more generally directed?

Australians often are incredulous at the damages awards in the USA.  Damages in the millions of dollars is not uncommon for claims we would consider relatively insignificant.  Approached vice versa, the USA entertainment industry might be more inclined to take notice of a multi-million dollar decision in favour of Rebel Wilson, than one in the hundreds of thousands of dollars.

Accordingly, it is interesting to reflect upon whether “the public” referred to in the above quote is just the Australian public, or whether it includes the US entertainment industry.  If it can be reasonably inferred that it includes the latter, this would arguably be an impermissible approach.

D. Conclusion

We will not know for a few weeks whether Bauer Media decides to ride out this particular “media firestorm” on the basis that the news cycle is relatively short-lived, or whether it decides to proceed to Round 2 of the court system.