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14 Aug 2020

HHG Legal Group’s Dispute Resolution team’s Senior Associate, Blair Campbell and Lawyer, Alexandra Turner break down a recent Supreme Court decision involving statements made by a disgruntled former business partner via Facebook.

20200812 Defamation In article

Whereas once upon a time, libel and slander allegations were the lot of print and television journalists, a case recently determined by the Supreme Court of Western Australia has emphasised that everyday businesses and individuals are legally culpable for what they say about others under our defamation laws.

BACKGROUND

The case of Fu v Winstar Group Pty Ltd [No 3] [2020] WASC 222 involved a few players, most relevantly:

a) Hands On Computer Training International Pty Ltd trading as “The Australian Institute of Commerce and Technology” (AICT), a company delivering training in IT, business and English
b) Winstar Group Pty Ltd (Winstar), a migration and education agent
c) Mr Cha, a director of Winstar

AICT and Winstar had an agreement where Winstar found students for AICT for a commission, but this agreement was terminated after differences arose between the parties in late 2014.

THE ORIGINAL PUBLICATIONS

Mr Fu and Ms Jeong (of AICT) claimed that the defendants published defamatory statements about them on Winstar’s Facebook page, in a pamphlet distributed to AICT students and in a letter from Mr Lee published on Winstar’s Facebook page. AICT also claimed that the statements were false statements published maliciously that caused damage to AICT.

THE INJUNCTION ORDERS

In December 2014, the plaintiff’s sought and obtained an injunction restraining the defendants from publishing on the Winstar Facebook page or elsewhere certain statements pending the outcome of defamation proceedings. The prohibited statements relevantly included:

  • That AICT had been involved in criminal conduct
  • That AICT was a sham operation
  • That AICT created sham documents
  • That AICT had been engaged in fraudulent activity
  • That AICT is not capable of providing proper schooling to its students
  • That AICT acts contrary to the interests of its students,
  • That AICT cheats its students out of their money
  • That AICT deliberately does not comply with applicable regulations
  • That AICT promotes benefits that it cannot provide
  • That AICT is involved in the sex industry
  • That AICT enrolls students with no intention they will attend courses, and
  • That AICT is a disgrace to the education sector.

FURTHER PUBLICATIONS

The Court found that, in spite of the injunction, Mr Cha made a number of further Facebook posts on the Winstar Facebook page in July 2016 that contained variations of the prohibited statements. Most of the posts were in Mandarin, so the Court referred to both “Bing” translations as well as translations from an accredited translator to get to the bottom of what was said.

For example, on 27 July 2016 a post was made which was translated to read:

AICT is now on WA’s top news…
AICT’s person-in-charge HONG FU forged curriculum and certificates … told students that they don’t need to attend classes … the government has now forbidden them to accept new students … the government has investigated them and their students …
Many people who obtained certificates previously must all go under review … students will be checked with their previous attendance …
Please pass around, so there won’t be more victims … attendance list has been passed to the government …

While there was no direct evidence Mr Cha had made the posts, the Court looked at a number of factors in determining that he was the maker of the statements, including that:

a) He had set up the Facebook page and was the controller of Winstar;
b) His submissions to the Court indicated he had not published anything from the date of the order until the date of the statements; and
c) Several posts identified that they had been made by ‘David Cha’

THE COURT’S FINDINGS

Mr Cha was far from a model witness, and the Court seems to have had little difficulty finding that the posts contravened the injunction orders.

Mr Cha was consequently found guilty of contempt of court.

One can only wonder what Mr Cha thought he was doing. Whether he imagined that no one who knew about the injunction orders would notice his posts, thought that because many of the posts were in Mandarin they wouldn’t be brought to the Court’s attention, or whether he was simply so indignant about some perceived wrongdoing on AICT’s part that he would not be silenced. Either way, he has now been found guilty of a contempt of court with a decision on punishment to follow.

How HHG Legal Group can assist

If you, your organisation or business have been the target of abuse or ridicule, whether online or in some other forum or publication our defamation lawyers have the knowledge and experience to ensure it is dealt with practically and professionally. We can also assist you with developing policies and practices to ensure your communications comply with the law. To find our more, contact us using our online enquiry form or call 1800 609 945.

*This is general information only, and does not constitute specific legal advice. Please consult one of our experienced Legal Team for specific advice relevant to your situation.

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