11 Oct 2016

This week, the Supreme Court of Western Australia held Mr Terence John McLernon accountable for his online actions as a ‘keyboard warrior’ and awarded a record $700,000 of damages for defamatory internet posts. 

The decision of Douglas v McLernon [No 4] [2016] WASC 320 demonstrates the very real life consequences of ‘trolling’ behaviour, and that the time tested legal action of defamation can be used to provide relief in the modern digital age.

Justice Kenneth Martin used his decision to dispel

“a perception in some members of the community that the laws of defamation do not apply to publications made over the internet … no matter how defamatory or scandalous the material may be”.

Mr McLernon represented himself in the proceedings that began in 2012 and Justice Martin noted that the Plaintiffs pursued justice despite knowing they were unlikely to recover much in the way of damages (or even legal costs) due to Mr McLernon’s “uncertain” and “problematic” financial position.

As is often the case, bringing this defamation suit would have cost the plaintiffs a considerable amount of money in legal fees and time.  The point of such a law suit is not as much to get adequate compensation for reputational damage as it is about setting the record straight.  A judgment such as this one amounts to a public declaration that whatever was written was entirely wrong and maliciously published.

The decision not only publicly announces Mr McLernon to be a defamer, but also contains highly critical assessments of his character in general.

Justice Martin described Mr McLernon as unrepentant, unapologetic, “erratic”, “defiant, hostile and unpredictable”.  Mr McLernon claimed memory loss in relation to most questions during the trial, as well as stating to the Court that he had no memory of preparing, signing or lodging multiple documents outlining his various and shifting defences of the action.

Justice Martin said Mr McLernon’s responses;

“…whilst under cross-examination were, on my assessment, false, unbelievable and unreliable. At times, as the transcript shows, they bordered on the bizarre.”

Justice Martin granted a permanent injunction on Mr McLernon’s ability to ever again post similar defamatory information about any of the plaintiffs because without such an injunction he considered Mr McLernon was a ‘strong risk’ to reoffend.  If Mr McLernon does breach this injunction he could be found to be in contempt of Court and would face prison time.

The significant award of not only damages, but also aggravated damages and costs on an ‘indemnity basis’ is not the norm in these kind of cases.  Justice Martin stated the record award is;

“an indication of the Court’s displeasure at [Mr McLernon’s] conduct in his defences of this litigation.”

The judgment serves as a warning to trolls and can also provide comfort to victims of cyber-harassment.  The decision pierces the perceived shield some trolls believe their screen to be.  It demonstrates that accountability and vindication through the Courts is available to any who suffer real life harm in cyberspace.

For more information about taking legal action against persons harassing you or your business online please see our related article. HHG regularly advises and acts for both victims of defamation and those defending defamation claims against them.

This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.

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