phone data harvesting

How’s this: a man, in the middle of a messy divorce and property settlement, sent a series of text messages to a male friend, talking about his ex-wife and her brother in very unfavourable terms. He was really angry at them. One of the things he said was this:

“Even the father [priest] of their church is extremely disappointed in them. I’ve been talking with him regularly since they turned on me, and he’s helped me to understand the reasons why seemingly nice people can turn evil.”

When the ex-wife’s brother, Armstrong, sued the sender of the texts, McIntosh, for defamation, the judge found that the above statement communicated two things about Armstrong that were defamatory of him: that he was an evil person, and that he had acted in such an unchristian manner that his parish priest thought ill of him.

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Armstrong sued over four text messages, all sent by McIntosh to the same friend (who passed them on to Armstrong). They all covered much the same ground, discussing McIntosh’s personal theories about why Armstrong and his sister were being so unreasonable about the splitting of marital assets. Standard stuff for a toxic separation.

(Note: Armstrong is Paul Armstrong, the former editor of the West Australian, who, as such, would know a fair bit about defamation. The texts were sent by accountant Gregory McIntosh to a former football coach and Bali bombing survivor Simon Quayle, in 2017.)

Armstrong took it to the Supreme Court of Western Australia, where the case occupied seven days of hearing before Justice Le Miere delivered his judgment recently. McIntosh lost hands down, the judge finding that he had defamed Armstrong quite badly. His defences, including that the case was trivial, failed.

All good for Armstrong, except that he was awarded total damages of $6500. The harm he had suffered, while in the judge’s view not trivial, wasn’t exactly material either.

Most relevantly for that conclusion, the defamation had been communicated to only one person, who gave evidence that “he read the text messages but did not give much if any thought to what [McIntosh] said about [Armstrong].”

Given Armstrong hadn’t suffered any real reputational harm and obviously no financial loss, all that were left to be compensated were his hurt feelings. They, the judge decided, were worth $5,000, with an extra $1,500 chucked in as aggravated damages because McIntosh hadn’t backed down when Armstrong alleged he’d been defamed.

I’m not interested in second-guessing the judge’s assessment of the parties, or his value judgments about whether texting that someone is evil should be taken as a serious suggestion that they are, in fact, under Satan’s spell.

I am interested in pointing to this as another excellent case study of the deep problems with our current defamation laws. Apart from anything else, what a colossal waste of public resource. 

The parties will of course have thrown tens of thousands of dollars each, probably more, at the case and more fool both of them for doing so. However, the courts run at public expense. It’s a travesty that a case like this should get anywhere near a supreme court, let alone run for nearly two weeks.

After all, what we have here is a dispute that happens everywhere, every day. Otherwise reasonable people ended up in a nasty, vindictive fight that had become extremely personal, and things were said that should not have been. 

If those things had been amplified to an audience of scale and significance, then, yes, maybe the law could appropriately intervene. But text messages to an audience of one, no.

This isn’t the judge’s fault (not entirely); the current law provides only a narrow possibility for getting rid of petty defamation claims. He was probably right that this one went higher than the threshold of what is deemed “trivial”.

What we need, among other reforms, is a serious harm test. This is included in the draft package of reforms being pushed by the NSW government to the model defamation law that hopefully all states will end up adopting. The test would knock out defamation claims that haven’t involved serious harm. However that’s defined, it should defeat a case where the only arguable harm was to the plaintiff’s feelings.

The lawmakers could also consider applying disincentives to bringing minor defamation claims, through the rules governing costs orders. This will help dissuade the suit brought “on principle”.

There are plenty of other problems, but that’ll do for the analysis of a silly case that wasn’t worth even the $6,500 price tag it ended up attracting.

I’ll just say this to close: defamation law was created to provide a remedy for lost personal reputation. 

The public policy underlying that should obviously limit the remedy to cases of high seriousness and consequence. The law’s development has taken it way below any level of actual social utility, way down into the petty and ridiculous. It’s time for massive reform.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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