Hateful blogging
Wednesday, December 28, 2011
Justinian in Damages, Defamation, Marieke Hardy, Theodora

Defamatorium … Joshua Meggitt v Marieke Hardy … Missing the target gives rise to two victims of defamatory outbursts … The trend in defamation payouts … Why hasn't the hate blog been taken down?

Hardy: victim who accused the wrong bloggerA reported $13,000 payout by TV book show celeb Marieke Hardy shows the impact the internet is having in keeping outcomes for defamation claims at the lower end of the scale. 

It also shows the extraordinary propensity for truly vile blog sites to keep publishing well beyond the point when the host would have notice of the distressing content. 

It looks as though the settlement is little more than costs and an apology. It's a modest outcome for a serious defamation - an accusation that someone is the author and publisher of a hate campaign. 

Quick online retractions and grovels, plus the cap on damages under the uniform Defamation Act (now just over $300,000) mean it's rarely worth the candle to fight in court to salve an injured reputation. 

According to the table of damages published by the Gazette of Law & Journalism the highest damages award this year was in the Queensland District Court for $150,000 in the case of Nowark v Putland, which concerned unrelenting allegations of paedophilia and being called a "wog" in a body corporate dispute. 

This year in NSW the top two court awards for defamation were both $100,000. 

The average award for 2011 in NSW, the state most prone to defamation litigation, is $71,286 and in Victoria, Marieke's stomping ground, I can find no reports of a defamation trial that ran to a verdict. 

The costs of achieving relatively modest outcomes for injury to reputation, etc. have slowed the defamation business to a trickle. 

Hence the NSW bar 'n' grill's recommendations that the cap on damages be removed, that the dead and corporations be permitted to sue, and that a public interest requirement be added to the truth defence. In other words, ears back, snouts in trough.  

It seems Hardy outed the wrong man in response to the nasty online hate campaign against the fragrant book reviewer, TV script writer and personality. 

She had named and shamed Joshua Meggitt, who had posted an unflattering critique of the First Tuesday Book Club, for which Hardy is a regular member of the chat panel.

However, he was not the author of "ranting, violent" remarks about her.  

The naming and shaming of Meggitt was conducted through the Twitter hashtag #mencallmethings

As one Twitterer remarked, Meggitt's case may give rise to a #womencallmethings campaign. 

The offensive attack on Hardy was the work of an individual sheltering behind the nom de guerre of James Vincent McKenzie, who blogs at http://jvmk.blogspot.com/  

This is a decidedly unpleasant blog. It was taken down for a while, but has now returned with a vengeance.  

In these circumstances it may have been more appropriate for Ms Hardy to be collecting damages. 

Instead, on her own blog site she apologised on December 23 to the mistaken target of her understandable distress:    

"For over five years I have been the victim of a hate blog against me. On 9 November 2011 I incorrectly identified Joshua Meggitt on this site as the man responsible for writing that blog. I accept that Joshua is not the writer and I sincerely apologise to him and his family for any upset caused." 

This is a case where there were two victims of defamation. 

Actually, it should not be all that difficult to apply for discovery of who or what is behind jvmk.blogspot.com. The site is hosted by Google, it requires a Google account and gmail address to function and it is clearly in breach of Google's terms, which would entitle the host to take it down.   

Even if a false identity is used, the digital fingerprint would still be there and it should be possible to discover the IP address of the computer behind the blogging. 

Ms Hardy might be able to get her $13,000 back, plus. 

Update on Wednesday, December 28, 2011 by Registered CommenterJustinian

This afternoon the hate blog has done another of its reappearing acts. It's moved from jvmk.blogspot.com to jvmck.blogspot.com. Tricky. 

Article originally appeared on Justinian: Australian legal magazine. News on lawyers and the law (http://justinian.com.au/).
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