Liverpool mayor Ned Mannoun is facing a hefty costs bill after a defamation lawsuit he launched over a Facebook comment branding him a “crim” failed at the first hurdle.
In the latest test of major new laws, the NSW District Court found Mannoun had not satisfied a mandatory requirement to show the comment had caused serious harm to his reputation.
Liverpool Mayor Ned Mannoun sued for defamation over a comment on the Liverpool Council Shenanigans Facebook page.Credit: Dion Georgopoulos, Stephen Kiprillis
Mannoun filed defamation proceedings last year against political opponent Peter Ristevski over a reply to a post on the public Facebook page Liverpool Council Shenanigans in 2022 that opened with: “Nader Mannoun is a crim”.
“I dare the grub to sue me for defamation,” Ristevski added.
Ristevski, once Mannoun’s accountant, was a former Liverpool councillor when he posted the comment. He has since returned as an independent councillor.
Liverpool councillor Peter Ristevski.Credit: Louise Kennerley
The serious harm requirement, introduced in 2021 in all jurisdictions but Western Australia and the Northern Territory, is designed to act as a handbrake on trivial or marginal defamation claims.
Judge Judith Gibson said evidence given by the Facebook page administrator confirmed her impression the page published “allegations and ‘zingers’” rather than serious investigations.
It was “a page for followers with a negative opinion of the Liverpool Council” and had about 250 followers when the comment was posted. The comment was deleted shortly before the trial.
In considering whether serious harm had been proven, Gibson said the internet “is a vast resource, with the capacity for publications to be read by millions – or by a bare handful of people”.
“It is not enough for a publication to be uploaded onto the internet, even on a frequently accessed page.”
Gibson said Facebook comments on posts “do not have the same visibility as a post would have” and the comment was published to a handful of people.
Mannoun called evidence from his political campaign manager and a friend at the council who had read the post, but Gibson said they read it “only because it was part of their duties to keep an eye on the defendant and his fellow troublemakers” and “their evidence cannot demonstrate serious harm”.
‘Monumental change’ to law
University of Sydney Professor David Rolph, an expert in defamation law, said the introduction in 2021 of serious harm as part of what the plaintiff has to prove to establish liability was “a monumental change”.
“Previously, damage to reputation was presumed. Now, up front, the plaintiff has to prove the actual impact of the publication on their reputation,” Rolph said.
“We are starting to see in the case law what the requirement of serious harm will mean in practice, but it will take some time for all of the implications of serious harm on the longstanding tort of defamation to be fully worked through.”
University of Melbourne Law School associate professor Jason Bosland, director of the Media and Communications Law Research Network, said there was “no direct evidence” in this case “of anyone thinking less of the plaintiff, and so it was all based on inferential evidence”.
“Based on what was available to the judge here, that wasn’t sufficient [to establish serious harm],” Bosland said.
“In the absence of direct evidence, it can be quite difficult to establish that the serious harm threshold has been met.”
Bosland said there would be “circumstances where the seriousness of the words themselves, combined with the extent of publication, will be sufficient”, particularly if they were published by mainstream media outlets.
But this case demonstrated that establishing serious harm in the context of a social media publication with a limited audience might be more difficult.
“It’s obviously going to weed out these types of disputes, which is what it was intended to do,” Bosland said.
Independent Sydney MP Alex Greenwich established serious harm in his successful Federal Court defamation case against former NSW One Nation leader-turned-upper house independent MP Mark Latham over an offensive tweet. In that case, the court said the tweet unleashed a torrent of “hate-filled venom” against Greenwich.
No appeal
In a written statement, Mannoun told The Sydney Morning Herald: “I have no intention to appeal as it is clear the comment is defamatory, however, it is challenging to prove serious harm when you have just had an election and won every polling booth and booths that the Liberal Party have never won in history.” He said it was “unfortunate that the disgusting comments … go unpunished”.
Ristevski said he was happy with the court’s decision.
Mannoun and Ristevski have long been at loggerheads. Ristevski was convicted last year of offences under the state’s Electoral Act and fined a total of $3000 for distributing anonymous election flyers about Mannoun’s wife, Tina Ayyad, now the Liberal MP for the state seat of Holsworthy, that failed to display the name and address of the printer and the person authorising their distribution.
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