joe aston elaine stead
Elaine Stead and Joe Aston (Images: SouthStart; Joe Aston/Twitter)

“She was being serially mocked in Australia’s leading financial daily as being, in effect, a gaping moron. There was an asymmetry of power and Dr [Elaine] Stead was sufficiently astute to understand that Mr [Joe] Aston was ‘the one with the column inches’.”

That’s how Federal Court Justice Michael Lee saw it, and he awarded Stead $280,000 in compensatory and aggravated damages against Aston’s employer at The Australian Financial Review, Fairfax Media (now Nine Entertainment).

Stead had sued for defamation over a series of attack pieces by Aston in the Rear Window business gossip column of the AFR during 2018 and 2019. He had called her a “cretin”, compared her to the movie idiot Brick Tamlin, described her social media posts as “unhinged drivel” and gone after her record as a venture capital fund manager, calling her a “venture capital pyromaniac” who “set fire to other people’s money”.

Fairfax had claimed the complete defence of honest opinion. That requires leaping four legal hurdles. Fairfax fell at the third.

Lee found that Aston’s work conveyed four defamatory imputations about Stead: she was a cretin; she rashly destroyed capital causing enormous losses to shareholders; she made stupid investments in two worthless companies, Shoes of Prey and Vinomofo, which had no prospects of success; she is an untrustworthy venture capitalist who fails to deliver on her promises.

The first step in the opinion defence is to establish that the words published were statements of opinion, rather than fact. If they were facts, their truth would have to be proved. Opinions, however, can be wrong.

As Lee observed, the difference can be hard to spot, particularly in the context of gossip columns. Aston, “a talented and oftentimes highly entertaining wordsmith”, writes with “characteristic acerbity [and] is no doubt often amusing; but one suspects the mirth of some readers might be mixed with a vague sense of disquiet that their behaviour might someday become the subject of his mocking focus”.

In that sense, it was Aston’s penchant for extravagantly spiteful language, and his reputation for writing that way, that saved him. Lee concluded that the audience for his assaults on Stead would have read them as his subjective opinions, not assertions of fact. For the aficionados, the point is that he was taken to be saying that he considers Stead to be a cretin, not that she was in fact a cretin.

The second step is that the publications about Stead must have been in the public interest. Lee found that they were.

The third hurdle is that the defamatory opinions expressed by the writer must have been based on a foundation of truth. It is defensible to write that a venture capitalist is terrible at their job and rashly threw away other people’s money — if you also set out the true facts on which your opinion is rationally based (or those facts are notorious). Here Aston failed.

The judgment contains exhaustive analysis of those aspects of Stead’s investment record that Fairfax said provided the foundation for Aston’s demolition of her professional reputation. In the end, Lee found that it fell a long way short of what was required.

The onus was on Fairfax, and it couldn’t get there. While Stead had had failures, venture capital is an inherently risky game and the evidence didn’t get close to showing her up as a conspicuously poor operator. In short, it failed to explain why Aston had taken such a dramatic set against her.

As a consolation prize, Lee accepted that Aston had held his opinions honestly; he really did think Stead was a prize fool. However, the defence had been wrecked on the reef of absent facts.

It remained to determine how much Stead should get.

In the witness box, she had described the impact of Aston’s work:

I had to go see a psychologist because I was having suicidal thoughts. I felt like the core thing that was my purpose on a daily basis — which, as a venture capitalist, my reputation is everything. It’s the only thing I have. It’s the only thing a fund manager has. I just couldn’t see a way to get out from under the harassment and the bullying and the mocking and the humiliation.

To Lee, Aston’s “targeted campaign of offensive mockery of Dr Stead was unjustified and improper”, leading him to add aggravated damages to the general award for lost reputation and hurt feelings. It’s not a record verdict, but it is a big one and no doubt Fairfax will be ordered to pay Stead’s costs.

For the media, this is not a terrible result. The main concern going in was that the honest opinion defence’s scope may be further narrowed, leaving ever less room for reviewers, critics and opinion columnists to express honestly held, but controversial and sometimes stridently expressed, views.

That didn’t happen. The case affirms that a gossip columnist such as Aston does have a relatively wide range to explore with safety when digging out scandal or incompetence and flaying it with harsh words.

However, the devil is in the detail. If you’re going to go after someone and try to bring them down, you’d better have your ducks in a row. As is so often the lesson in defamation litigation, lazy journalism always leaves its perpetrator exposed.