Molan’s lawyers had argued that the articles conveyed a number of other defamatory meanings, including not only that she was “such an arrogant woman of white privilege that she has refused not only to learn how to pronounce the names of Polynesian NRL players , but also to apologize for deliberately mocking them on air”.
Bromwich found that the article conveyed this meaning and four other meanings, including Molan’s having “deliberately mocked the names of Pacific Islanders on air, then lied about it by falsely claiming that it meant to a “banter” between her and her co-hosts of the commentary team.”
It found that two related tweets did not convey the single defamatory meaning alleged by Molan’s lawyers, meaning no defense needed to be considered in relation to the tweets.
The Daily Mail sought to rely on a number of defenses in relation to the article, including truth and honest opinion.
Bromwich rejected both of these defenses and said the Daily Mail “went too far, failed to exercise sufficient care and made a series of material and defamatory errors”. However, it found that a defense of contextual truth was available in a limited way to mitigate damages.
He said the Daily Mail had shown a separate contextual meaning was true, namely that Molan “engaged in conduct likely to offend people because of their race or ethnic origin” during the broadcast of 2GB, ” putting on an accent and saying ‘Hooka, Looka, Mooka, Hooka, Fooka’. This finding is available to Dailymail.com for damage mitigation.”
“That said, I accept that this was ignorant or thoughtless behavior rather than deliberate, as reflected in the genuine apology she gave. I dare say she has been more careful since then,” he said. said Bromwich.
Molan’s damages award is relatively modest. Damages for non-economic loss in defamation cases in Australia are currently capped at $443,000, a figure that rises annually.
More damages may be awarded in cases where the judge deems aggravated damages appropriate.
Bromwich said the defamatory allegations were “harmful” but “not at the highest levels of seriousness and, despite remaining online, have not been shown to be of any lasting nature, particularly as they represent unfounded allegations of transient conduct in place of more serious conduct such as illegality, or on its character”.
He said that “by any standard, this is a substantial sum of money for closely interrelated and unjustified online insults, enough for any normal person to be well and truly satisfied that they were false and should never have been published.”
Bromwich noted that it was not necessary to determine whether it was substantially true to say that Molan was “racist” because he found that the Daily Mail did not make that claim.
However, he added that if he had been forced to consider the defense of truth, Molan “was in danger of reaching an adverse conclusion because of his excessive behavior in … previous broadcasts, including falsifying various accents and possibly attributing characteristics or advancing racial stereotypes in his on-air comments”.
Molan is a former employee of Nine Entertainment, publisher of this column.
In a statement, Daily Mail Australia managing director Peter Holder said: “We are very disappointed by the outcome of today’s judgment and are considering an appeal to the Full Court of the Federal Court of Australia.”
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