In the case of Piscioneri v Brisciani ([2015] ACTSC 106), the Australian Capital Territory Supreme Court found that the owner and administrator of online forumZGeek is liable for discussion on it, and awarded $82,000 damages to a lawyer defamed on the site.
Justice John Burns included a modest award of $10,000 for aggravation, stating:
“The publication of letters written by the plaintiff to the defendant on his website are a clear indication of the defendants desire to intimidate the plaintiff and dissuade her from pursuing her case against him.”
Background
Queanbeyan lawyer Gabriella Piscioneri commenced defamation proceedings over a series of posts made on ZGeek forums between 2005 and 2010.
The posts attacked the plaintiff, who had instigated a re-trial of the notorious Skaf brothers after alerting the court to misconduct by jurors.
As the judge noted, many were offensive in nature.
The posts were made on several parts of the ZGeek site, including the “Tool of the Week”, “Bitching and Rants”, and the legal page.
Both parties were self-represented at trial.
Piscioneri pleaded 52 separate defamatory imputations, including that she is an unjust and indecent person, she is extremely wicked, immoral and insane, she is an ex-lawyer, she is responsible for Bilal Skaf’s retrial and his reduction in sentence and she acted incorrectly by reporting the foreman of the jury in the Skaf trial.
Tony Brisciani (pic) ZGeek’s owner, administrator and webmaster, pleaded qualified privilege, honest opinion and triviality in defence.
He also claimed the posts were not defamatory because they were mere vulgar abuse.
Justice Burns noted that Piscioneri had to prove she was identifiable in the 2010 posts, since she was not named.
2005 posts
Brisciani, using the name “Pirate”, started a discussion on the “Tool of the Week” forum, which attacked Piscioneri on a number of points.
He ended noting that:
“The bastard that lead the attack got his sentence reduced by almost ten years. Gabriella Piscioneri you’re a big tool and you should practice the mantra of ‘shut the fuck up’‘’.
Following Brisciani’s post, several other users of the forum weighed in with varying levels of abuse.
Another user, “dilligaf” made a separate post about the matter in ZGeek’s “Bitching and Rants” forum.
Dilligaf’s post included lines like “Just because some stupid bitch riding her fucking high horse, no wait, her little fucking pony, waltzes along and cant (sic) keep her mouth shut, does that not mean that these guys should get any less time.”
Other users pointed out that as a lawyer she was bound to inform the judge of the jury’s actions and that it was the jury’s misbehaviour, and not misconduct on Piscioneri’s part that caused the mis-trial.
2010 posts
After becoming aware of the posts, Piscioneri contacted Brisciani in December 2009 asking that he remove them.
Shortly after, number of new posts appeared on ZGeek criticizing her ‘’legal threats’’.
Several posts referred to the plaintiff as an ‘’ex-lawyer’’ and an ‘’ex-solicitor’’, though none named her.
Judgment
Justice Burns first considered whether Brisciani was liable for the forum posts of others.
He was satisfied that:
“The defendant cannot be said to be a mere passive facilitator of the ZGeek posts, as his own post titled ‘Tool of the Week’ initiated the discussion of the plaintiff, he actively engaged in the ongoing discussion and he had the ability to remove the posts from ZGeek at any time.’’
His Honour also considered whether the archiving of the posts by a site called the “Wayback Machine” constituted republication.
Justice Burns found that the archiving of online material was the ‘’natural and probably (sic) consequence of posting material online’ – as such, Brisciani could be held liable for it as a republication.
Regarding the posts on the “Bitching and Rants” page, Justice Burns found that other posts published in the course of online discussion remedied any defamatory sting.
Justice Burns considered “Tool of the Week” posts separately.
He determined that the forum “conveys an imputation that the plaintiff acted unethically, and exposes the plaintiff to hatred, ridicule and contempt.’’
He found the 2010 posts conveyed imputations that the plaintiff is ‘’stupid’’, ‘’retarded’’ and “attention-seeking”.
Justice Burns found only three people – including Brisciani and another site administrator – were shown to be aware of her identity.
Defences
The impact of several of the defences differed slightly in respect of the earliest posts complained of, as they were published in 2005, before the introduction of uniform defamation laws.
Justice Burns rejected the defence of qualified privilege, stating:
“The defendant cannot be said to be under any moral or social duty to publish such ill-informed views, as it clearly goes against the public interest for such material to be disseminated.”
Justice Burns (pic) found the statutory defence of honest opinion/fair comment was not established because the material was not in the public interest.
Nor were the comments “based upon, or were a fair and accurate account of, facts that were substantially true or sufficiently identified.”
In respect of the triviality defence, Justice Burns concluded:
“The reasonable, ordinary reader of both the 2005 and 2010 ZGeek posts would understand that the material was not in jest and was to be taken seriously.’’
He rejected the defence of mere abuse in relation to the 2005 posts for the same reason.
Damages
Justice Burns stated that it was ‘’clear that the publication of the ZGeek posts had a detrimental impact on the plaintiff’s wellbeing’’.
However, he was not satisfied that any damage was done to Piscioneri’s professional reputation.
“If a legal professional were to read [the posts], they would come away knowing that the plaintiff had simply complied with her duties’’.
Justice Burns did accept that the post may have influenced potential employers outside the legal profession, but noted that relatively few people viewed the forum.
The “Tool of the Week” thread had 360 views between the time the first post was published in 2005 and the time it removed in 2009.
Justice Burns found that Brisciani’s steps to remove information identifying the plaintiff from ZGeek, and to have pages referencing her removed from search engine indexes, mitigated damages.
He awarded aggravated damages because of Brisciani’s ongoing “desire to intimidate the plaintiff and dissuade her from pursuing her case against him.’’
Piscioneri was awarded $82,000, inclusive of interest and $10,000 aggravated damages.
This post originally appeared in the Gazette of Law and Journalism, Australia’s leading online media law publication.
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