[11637] in Commercialization & Privatization of the Internet
Aussie Internet libel opinion
daemon@ATHENA.MIT.EDU (DAN L. BURK)
Tue Apr 12 13:11:01 1994
Date: 12 Apr 94 08:48:00 EST
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>From: Archie Zariski <zariski@csuvax1.murdoch.edu.au>
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Subject: E-mail and libel
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I am now appending the judgment in the recent network defamation case in
Western Australia as located by law student Inge Lauw:
Archie Zariski (zariski@murdoch.edu.au) *
Senior Lecturer in Law * *
School of Law * * *
Murdoch University * * *
Murdoch, Western Australia 6150 * * *
Ph +619 360 2985 Fax +619 310 6671 * * * * * *
>From ilauw@cleo.murdoch.edu.au Tue Apr 12 04:57:51 1994
Date: Mon, 11 Apr 1994 21:06:53 +0800 (WST)
>From: Inge Lauw <ilauw@cleo.murdoch.edu.au>
To: zariski@csuvax1.murdoch.edu.au
Subject: Rindos case
IN THE SUPREME COURT OF WESTERN AUSTRALIA
BETWEEN
DAVID RINDOS
and
GILBERT JOHN HARDWICK
Heard: 25 March 1994
Delivered: 31 March 1994
No 1994 of 1993
(Unreported Judgement 940164)
IPP J
In this matter I am required to assess damages for defamation. The
plaintiff issued an endorsed writ claiming:
(i) Damages for libel published by the Defendant and contained on an
entry on the DIALx science anthropology computer bulletin board on 26
June 1993.
(ii) Damages for libel published by the Defendant and contained in a
letter to the Secretary of the Anthropological Association of Western
Australia on or about 9 September 1993.
(iii) Interest on damages pursuant to Section 32 of the Supreme Court Act
at the rate of 8% per annum or such other rate as the Court thinks fit
from the 26 June 1993 and 9 September 1993 respectively until judgment or
payment of damages
The defendant did not enter an appearance to defend and judgement by
default was granted to the plaintiff. Thereafter, an order was made that
the damages payable by the defendant to the plaintiff pursuant to that
judgment be assessed and that evidence be introduced by affidavit. Leave
to serve the necessary documents on the defendant by way of substituted
service was granted and service was effected as required. It appears
that the defendant does not wish to defend the action. In a letter dated
9 September 1993 to the plaintiff's solicitor he stated:
"Let this matter be expedited and done with ... If you wish to ... have
your client allowed his day in court to air his grievances against
Western Australians, then let it be. I can do nothing to prevent it
lacking any resources whatsoever to defend myself from whatever charges
anyone for that matter might wish to bring against me at (sic) time they
see fit."
The plaintiff is an anthropologist. He obtained a doctorate from Cornell
University in the United States of America in August 1981 and worked for
several years at universities in the USA as assistant professor and in
other capacities as an anthropologist. In about 1988 he emigrated to
Australia. In June 1989 he commenced employment as a senior lecturer in
the Department of Archaeology at the University of Western Australia. In
November 1989 he was appointed temporary acting head of the Department of
Archaeology and in February 1990 he became the acting head of the
Department. From March 1991 until June 1993 he was attached to the
Geography Department of the University of Western Australia as senior
lecturer in archaeology. He ceased being engaged at the University after
June 1993
Numerous publications of the plaintiff's works have appeared throughout
the world, including translations into languages other than English. He
has given papers at numerous national and international conferences and
has given lectures at different universities around the world. His work
has been cited regularly in papers by other academics. He is well known
internationally in the areas of anthropology and archaeology.
While the plaintiff was employed at the University of Western Australia,
a review took place as to whether he should be granted tenure. In early
March 1993 the Tenure Review Committee recommended that he be denied
tenure on the ground of insufficient productivity. This was made formal
in June 1993 and the plaintiff was dismissed by the Vice Chancellor of
the University with effect from 13 June 1993.
There was a large amount of interest, internationally, about the actions
of the University of Western Australia in denying the plaintiff tenure
and in dismissing him.
On 23 June 1993 a message appeared on a worldwide computer network
bulletin board, inserted by one Hugh Jarvis, an anthropologist in the
United States of America. The message criticised the University of
Western Australia for refusing to grant tenure to the plaintiff and for
dismissing him.
The computer bulletin board on which the message appeared is devoted to
"science anthropology". It is part of an international computer news
service to which persons can have access through computers and by which
users of computers can communicate with each other. Subscribers to or
participants in the network utilise their computers to communicate and
receive items of interest concerning anthropology. Most major
universities throughout the world are participants in the network, which
is also used by other persons. The main users are academics and
students. There are approximately 23 000 persons worldwide whose
computers have access to the bulletin board in question: The bulletin
board has a wide international readership.
The messages that appear on the bulletin board can remain on the computer
of a subscriber or participant for a number of days or weeks, depending
on the storage capacity of the computer in question. The types of
messages vary. Examples include information on anthropological issues
and personalities, debates on anthropological topics and personal
messages between anthropologists. The messages come from persons all
round the world, but particularly from the United States of America, the
United Kingdom, Canada and Australia. Most of the persons who send
messages and who view the bulletin board on a regular basis are persons
who are working or studying in the general field of anthropology.
Items of interest on the bulletin board can be printed on hard copy.
Such print outs can be and at times, no doubt, are circulated. Persons
who read the contents of the bulletin board and cause messages to be
printed include not only the owner of the particular computer, but any
person who has access to it, such as academics and university students.
On 26 June 1993, in reply to the message published by Hugh Jarvis, the
defendant caused a message to be published on the bulletin board.
According to the material supplied by the defendant to the computer, it
was transmitted by him from a computer in Derby, Western Australia. The
distribution was to "the world", which means that the message was
visible, and would have been able to have been read, on every computer
around the world able to receive the science anthropology news bulletin.
The relevant passages in the message that the defendant so sent, are as
follows:
"Well, here we have my old mate Hugh Jarvis, the guy responsible for the
first anthropologist (myself) being denied access to ANTHRO-L, now crying
over one of his fellow Americans being the first to be denied tenure at
an Australian University.
"Sorry, UWA is my own turf, Hugh. I know very well that problems there
are associated with the Anthropology Department there (now including the
Archaeology Department) but I am also well aware of the wider social and
political issues associated with our discipline here in Western Australia
centrally focussed around Aboriginal Affairs.
"The first matter I would raise in comment here, is the very public
difference between myself and Dr Rhindos (sic) on the matter of
categories in Aboriginal culture, played out on this very news group. In
that case Dr Rhindos (sic) quite openly attempted to discredit my own
lifetime's experience with Aboriginal people on the basis of his one
phone call apparently to an outstation!
"I have met the man myself, and my impression is that his entire career
has been built not on field research at all, but on his ability to berate
and bully all and sundry on the logic of his own evolutionary theories.
In the local pub, drinking and chain smoking all the while for that
matter.
"Secondly, and this is rumours passed to me by several reputable and
long-standing Western Australian anthropologists as to Dr Rhindos' (sic)
'Puppy Parties' focussed I am told on a local boy they called 'Puppy'.
Hmm, strange dicey behaviour indeed, especially here in an environment
dominated by conservative fundamentalists.
"Thirdly, and far more substantially, there are extremely serious
questions arising here concerning an ongoing political campaign here
against the Anthropology Department, most notably targetting (sic) the
department's long-standing support for Aboriginal Land Rights against
powerful international mining lobbies. This particular episode comes of
great interest right in the midst of our national debate over the effects
of the High Court's finding last year in favour of Eddie Mabo.
"I am sorry Hugh, but if someone for whom I might have a little more
respect than yourself had posted what you did, I would have hesitated to
post my own reply to your scurrilous attack on the University of Western
Australia, I can only imagine prompted by the powerful vested interests
lacking the guts and integrity to come out and speak honestly on
important issues deeply affecting Western Australia. If you are on their
payroll, I detest your involvement in this matter; if you are not on
their payroll I can only assume you are a complete fool.
"As has been Dr Rhindos (sic), apparently believing that since he is an
American he is somehow immune from the criticism of his non-American
colleagues in *their* country.
"In the meantime your hysteria, in my case earlier when you decided
unilaterally to deny me access to ANTHRO-L, and in this present case now,
does not in any way bring you credibility.
"The rest of you professors, lecturers, staff, students, professionals
and sundry lurkers and lookers-on, I do ask that you think critically
about what is going on here. Please be a little more intelligent than to
be swayed by grossly exaggerated and one-sided campaigns by a media to
which only one party has ready access. Please think about which powerful
politicians and vested interests might be behind this whole business.
"Please think that the real victims are the Aboriginal people here.
Thank you.
Gil Hardwick"
It was submitted that the publication of 26 June 1993 contained five
defamatory imputations, namely:
(a) The plaintiff engaged in sexual misconduct, in particular paedophilia
with a "local boy" called "Puppy".
(b) The plaintiff has no genuine academic ability in his field and has
not based his theories on appropriate research but has simply depended
upon berating and bullying others.
(c) The plaintiff "is against Aboriginal land rights and Aboriginal
people" and is a racist person.
(d) The plaintiff is not a genuine anthropologist but a tool of mining
corporations.
(e) The plaintiff drinks to excess and spends most of his time "in the
local pub"
I accept that words in the message published by the defendant give rise
to an imputation that the plaintiff engaged in sexual misconduct with a
"local boy".
I also accept that the message contains the imputation that the
plaintiff's professional career and reputation has not been based on
appropriate academic research "but on his ability to berate and bully all
and sundry". This seriously denigrates his academic competence.
I do not accept that the other paragraphs give rise to the imputations
alleged. In the course of argument these other imputations were not
pressed.
The imputation of sexual misconduct, and that relating to the plaintiff's
career being based on the ability to "berate and bully" and lack of
professional competence are, in my opinion, seriously defamatory of the
plaintiff. The inference is that these matters had some bearing on the
failure of Dr Rindos to be awarded tenure and his dismissal from the
University.
These defamatory remarks were published in academic circles throughout
the world. I accept the submission made by counsel for the plaintiff
that the nature of the remarks is such that they are likely to be
repeated, and that any rumours of a like kind that had circulated
previously were likely to gain strength from their publication.
The other publication of which the plaintiff complains, is a letter dated
9 September 1993 to the plaintiff's solicitor, copy of which was sent by
the defendant to the secretary of the Anthropological Association of
Western Australia. This letter contained the following remarks:
"My further understanding is that Dr Rindos had deliberately launched his
now infamous campaign in his attempts to revive an already shattered
academic career by constantly, openly and publicly seeking to discredit
those against whom he had acted as head of the then Department of
Archaeology, when he might well have approached them to discuss whatever
irregularities he is alleged to have uncovered in the first instance. He
might very well have settled down to administer his department
competently and professionally, and like the rest of us do some research,
to present his papers and to seek the review of his peers.
"His persist failure to do as I understand it is in fact the very reason
for the University's decision to finally deny him his tenure."
The imputation from the above quoted remarks is that the plaintiff did
not administer his Department competently and professionally, and is
again a denigration of his professional competence.
There has been no attempt by the defendant to justify these defamatory
remarks or set up any other defence to them.
I repeat that the plaintiff is well-known internationally in academic
anthropological and archaeological circles and that he is a person of
high standing in those circles. The defamatory remarks published are
likely to have a most harmful effect upon that standing.
I am also satisfied that the plaintiff has endured serious personal
suffering as a result of the defamation. There is evidence from a
consultant psychiatrist that the publication was the cause of a marked
exacerbation of symptoms of major depression and anxiety.
While the two publications were different, there was a clear and close
relationship between them. Their effect was similar to that of the two
defamatory publications considered in Carson v John Fairfax & Sons
Limited (1992) 113 ALR 577 where Mason CJ, Deane, Dawson and Gaudron JJ
said (at 584):
"The effect of the defamatory publications was cumulative. The second
compounded the harm to the appellant caused by the first: it renewed and
expanded the hurt to his feelings; it exacerbated the damage to the
reputation which he had hitherto enjoyed in legal, commercial and other
circles."
In such circumstances, as their Honours remarked (at 585):
"... it is permissible and sensible in a case where claims for closely
related defamatory publications have been heard together for a jury, in
determining what is the appropriate compensation to be awarded to the
plaintiff in respect of each publication, to take account of the
aggregate 'harm' suffered by the plaintiff by reason of both of them."
In Coyne v Citizen Finance Limited (1991) 172 CLR 211 Mason CJ and Deane
J approved the statement by Diplock LJ in McCarey v Associated Newspapers
Limited (No 2) [1965] 2 QB 86 at 107 that the injuries sustained by the
defamed person may b:
"classified under two heads: (1) the consequences of the attitude
adopted towards him by other persons as a result of the diminution of the
esteem in which they hold him because of the defamatory statement; and
(2) the grief or annoyance caused by the defamatory statement to the
plaintiff himself."
Also in Coyne v Citizen Finance Limited (at 235) Toohey J referred, with
approval, to the following remarks of Windeyer J in Uren v John Fairfax &
Sons Pty Ltd (1966) 117 CLR 118 at 150:
"It seems to me that, properly speaking, a man defamed does not get
compensation for his damaged reputation. He gets damages because he was
injured in his reputation, that is simply because he operates in two ways
- as a vindication of the plaintiff to the public and as consolation to
him for a wrong done. Compensation is here a solatium rather than a
monetary recompense for harm measurable in money."
I accept that the defamation caused serious harm to the plaintiff's
personal and professional reputation. I am satisfied that the
publication of these remarks will make it more difficult for him to
obtain appropriate employment. He suffered a great deal of personal
hurt. The damages awarded must compensate the plaintiff for all these
matters and must vindicate his reputation to the public.
In all the circumstances I consider that the plaintiff should be awarded
the sum of $40 000 in respect of damages. I also consider that the
plaintiff should be awarded interest on that sum at the rate of 8% per
annum from 9 September 1993.
