“But it was just my opinion, honest!"

CAREFUL! Expressing an opinion is still defamatory if it is not properly based on facts!

The Federal Court has recently found in favour of former managing director of Blue Sky Alternative Investments (Blue Sky), Ms Elaine Stead, finding she was defamed by the column “Rear Window” written by Joe Aston for the Australian Financial Review (AFR).

Ms Stead was awarded $280,000.00 in damages for two publications made by Rear Window which made various imputations attacking her intelligence and business acumen following the well-documented demise of Blue Sky.

The AFR agreed the imputations alleged by Ms Stead were defamatory, however the question for the Court was whether the publications conveyed the imputations as alleged by Ms Stead. The Court held Mr Aston’s opinion pieces did convey that:

1. Ms Stead was a “cretin”;

2. Ms Stead “rashly destroyed capital causing enormous losses to unitholders”;

3. Ms Stead was “a venture capitalist, who made stupid investments in two worthless companies, Shoes of Prey and Vinomofo, which had no prospects of success”; and

4. Ms Stead was “an untrustworthy venture capitalist who fails to deliver on her promises to shareholders and investors”.

The respondents sought to rely on the common law defence of fair comment and the statutory defence of honest opinion under section 31 of the Defamation Act 2005 (NSW), in which they argued:

1. The matter was an expression of opinion rather than a statement of fact; and

2. The opinion related to a matter of public interest; and

3. The opinion was based on proper material.

While the Court accepted the articles were an expression of opinion and of public interest, the defence was ultimately rejected, because the factual basis for the articles was inadequate, and the opinions expressed were therefore not based on proper material.

The case highlights that the question of whether an opinion is defamatory or not will depend the opinion’s factual accuracy. People who regularly post defamatory criticism of others in the press and on social media need to ensure the views they are expressing are factually sustainable or they could also find themselves on the wrong end of a defamation claim.

John Sneddon, Partner

(07) 3307 4504

jsneddon@shandtaylor.com.au

Charlie Hodgetts, Lawyer

(07) 3307 4513

chodgetts@shandtaylor.com.au