Erin Molan has had a win after a Federal Court found an online newspaper defamed her by alleging she was racist in an online article and needed to improve “the care it takes”.
The Sky News Host last year sued the Daily Mail for defamation, saying an article and two tweets by the news site falsely portrayed her as racist and an “arrogant woman of white privilege” because of her pronunciation of Polynesian names.
Justice Robert Bromwich on Tuesday handed down its reasonings in favour of Molan, finding five imputations put forward were not found to be proven to be substantially true by the publisher regarding the online article.
He was not satisfied that imputations put forward by the two tweets were conveyed.
In his judgment, Justice Bromwich found both sides had a “measure of success and a measure of failure”.
Daily Mail Australia must now pay the Sky News host $150,000 plus interest in damages, including aggravated damages for the online article only as she was entitled to the “substantial, but not excessive award”.
Justice Bromwich said the sum was substantial for “closely interrelated and unwarranted online slurs, sufficient for any ordinary person to be well and truly satisfied that they were untrue and should never have been published”.
“I consider this sufficiently meets the sting of the article as reflected in the imputations,” he said.
“Dailymail.com needs to substantially improve the care that it takes, or face further and greater awards of damages. Freedom of expression must be balanced with responsibility and basic professionalism which was sadly lacking in this case.”
The Mail’s story was based on Molan saying “hooka looka mooka hooka fooka” on the show in May 2020.
While the judge ruled in Molan’s favour, she was still found to have been “ignorant or thoughtless” and caused offence by saying the words on air.
Justice Bromwich said the Daily Mail’s suggestion that Molan was being racist was not conveyed in the article.
However, he conceded that she was “unwitting and careless” in making the comment and had not acknowledged that she did “even the slightest thing wrong”.
But Justice Bromwich said the Mail wrongly alleged that Molan “callously and deliberately mocked” the names of Pacific Islanders, then lied about it by claiming she was referring to an in-joke.
He found the publisher also wrongly alleged that she had refused to apologise and that she was an “arrogant woman of white privilege for behaving in this way”.
During the trial, the publisher argued that the imputations carried were true – and Molan had demonstrated a “pattern” of racist comments in her time at 2GB’s Continuous Call Team program.
Acting on behalf of the Daily Mail, Bruce McClintock SC told the court in September 2021 that Molan’s attempts at accents were forms of “ugly racial stereotypes”.
However, Molan told the court it was a lighthearted jab at legendary commentator Ray Warren, who had been overheard sounding out players’ names with his son and fellow commentator Chris.
She claimed Daily Mail had “distorted and misrepresented” what she said in the 14-second segment “so as defame her in the way of six imputations, each of which relied on the June 5 online article”.
Justice Bromwich found the online article was “not, in my view, one that was ‘tinged with, or even pregnant with, insinuation or suggestion’ going much beyond what was overtly stated, or such as to implicitly ‘invite the reader to adopt a suspicious approach’.”
“The June 5 online article was blunter and more directly critical. It stated what Ms Molan was said to have done, as had also been stated the previous day in the June 4 article, and reported on the reaction to that reported behaviour,” he said.
“The ordinary reasonable person, even with the propensity to loose thinking, would not, in my view, make the substantial leap of equating the use of the phrases ‘complicit in racism’ and ‘complicit to racism’ about what she was said to have done.”
Justice Bromwich said the bulk of the article addressed what Molan was said to have done and why commentators thought it was unacceptable.
“Such a reader would understand that she was being severely criticised … but there was no real implication of more than what was being overtly said,” he said.
Justice Bromwich is allowing Molan to be heard on an injunction to take down the Daily Mail article, which was the basis of the defamation case, if it had not already been removed.
He said the Daily Mail should “sensibly and promptly” take down the article if it had not already done so.
Justice Bromwich said it would be advisable for the online publication to promptly follow through with the action after his verdict.
