A Sydney based travel company commenced defamation proceedings against a member of a private mother’s facebook group that had close to 6,000 members.
In Aaren Pty Ltd trading as Price Beat Travel v Arya [2020][1], the defendant published a post on the facebook page of a community group called ‘Desi Mums Connect (Sydney)’. The profile of this community group had three characteristics: the members were mothers; they were of Indian extraction; and they lived in Sydney. The post was extremely critical of the travel agency’s quality of services. The plaintiff travel agency contended that the post carried the following imputations:
- The plaintiff cheated the defendant by charging $180 for an airline ticket for her infant daughter but did not remit the payment to the airline;
- The plaintiff cheated the defendant by issuing a ticket with false information on it that caused the defendant to book another ticket to travel home from India; and
- The plaintiff was so incompetent as a travel agent that the defendant’s daughter was forced to travel all the way to India without food or a bassinet to sleep in.
By reason of the publication, the plaintiff claimed that it has been greatly injured in its character, credit and reputation and brought into public hatred, ridicule and contempt.
The defendant did not deny making the publication but denied that the post was defamatory in its ordinary and natural meaning. She also relied upon a range of defences including an ‘honest opinion’ defence.
Section 9 of the Defamation Act 2005 (NSW)(Act) generally provides that corporations do not have the capacity to sue. The plaintiff carries the burden of proving that it is an excluded corporation, that is, that the plaintiff employs fewer than 10 persons and is not related to another corporation. The District Court considered an extract from the plaintiff’s website that contained a statement that the plaintiff had “over 40 staff members based in Sydney, Melbourne and India….” The plaintiff argued that call centre operators should not be properly characterised as employees. The Court was not satisfied that the defendant corporation employed less than 10 employees.
The Court then went on to consider that if was wrong about the plaintiff having no capacity to commence proceedings and the post complained of did carry defamatory imputations, would the defence of honest opinion apply?
Section 31 of the Act provides a defence to the publication of a defamatory matter if the defendant can establish that:
(a) the matter was an expression of opinion of the defendant rather than a statement of fact;
(b) the opinion related to a matter of public interest; and
(c) the opinion is based on “proper material”.
The defendant contended that she had set out in the post a statement of facts as to what happened to her and concluded on the basis of those facts which were substantially true (and hence proper material) that she had been cheated by the plaintiff and she expressed that view. In his honour’s view, the defendant was expressing an opinion and not stating facts. He accepted the ‘sting’ in the post that “this agent cheated us” was a deduction or conclusion or comment on the substratum of fact. He found that the ordinary reasonable reader would appreciate that the defendant’s method was to lay out the facts as she perceived them to be, hence the introductory statements “I would like to share my experience”. The facts were that she had not received a baby meal for her infant or a bassinet and that according to the airline staff member, they had no record of a ticket being purchased for the infant. The defendant’s overall purpose was to provide a recommendation to the facebook group. The Court found that the reference to being “cheated” was not a gratuitous slur but the basis for the recommendation.
The plaintiff’s claim was dismissed and costs were awarded to the defendant.
[1] NSWDC 657 (2 November 2020)
