AFR columnist Joe Aston trod fine line with sharp tongue in $280,000 defamation trial

Joe Aston’s descriptions of venture capitalist Elaine Stead as a ‘cretin’ who ‘set fire to money’ tripped him up to the tune of $280,000.

Joe Aston outside court, left, and one of his many foot posts which feature regularly on his Instagram. Pictures:

You have likely seen enough of Joe Aston’s feet. Behold, now, his not inexpensive tongue.

Aston’s decision to describe the venture capitalist, Dr Elaine Stead, as a “cretin” who “set fire to other people’s money” has cost his employer, Nine Entertainment Co — publisher of Aston’s Rear Window in the Australian Financial Review – $280,000 in ordinary and aggravated damages.

There will likely be some interest, and some legal bills.

It sounds like yet another loss for the media, but Justice Michael Lee, presiding in the Federal Court in Sydney, did have some fond words for Mr Aston, and some encouraging ones for the media.

Columnists are entitled to their opinions, he said. But those opinions must be “properly held” which is to say, based on identifiable facts.

In this case, it seemed to Justice Lee that Mr Aston had engaged in something that more closely amounted to “a form of bullying.”

His defence of “honest opinion” had therefore failed.

“It is common ground that Mr Aston is a talented and oftentimes highly entertaining wordsmith,” Justice Lee said, in a judgment handed down over Microsoft Teams on Wednesday.

‘Vague sense of disquiet’

His columns are acerbic, and often amusing but “one suspects the mirth of some readers might be mixed with a vague sense of disquiet that their own behaviour might some day become the subject of his mocking focus.

“That was perhaps for this reason that Mr Aston, blithely (but self-revealing) gave evidence he was not a very popular columnist.”

In fact, he is believed to be the Fin’s most popular, and highest paid.

Elaine Stead leaving the Federal court with her lawyer. Picture: Jane Dempster/The Australian.

In mocking the rich and powerful, Mr Aston “walks a fine line” between two important human rights: freedom of expression, and the right to reputation.
The law of defamation, and its defences, exist to reflects the tension between those rights.

In the view of Dr Elaine Stead’s legal team, Mr Aston not only crossed that line, he “pole-vaulted it.”

Mr Aston disagreed, telling the court during his evidence that he described Dr Stead as a cretin because he honestly believed she was actually stupid, on the basis of investments she made while she was a director of the failed Blue Sky investment vehicle.

“Stupid is as stupid does,” he told the court.

But that’s a famous line from a movie, and Justice Lee said “Mr Aston is not to be confused with Forrest Gump.”

Justice Lee said most people would agree that to be a cretin is to be brainless, or grossly stupid. He didn’t believe that Mr Aston genuinely believed that Dr Stead was either of those things.

The evidence suggests is a highly educated, intelligent woman.

Mr Aston’s opinion was not therefore, “properly based.”

Justice Lee noted that some of Dr Stead’s colleagues at Blue Sky were concerned about her Tweets, and wanted to take her phone away from her, since she was chatting to “her peeps” in an unguarded way, during the company meltdown.

She seemed to think “the media would leave her tweeting alone, and not report it.”

Justice Lee said this “was at best a naive view” for her to hold.

Indeed, he seemed utterly perplexed at the willingness of so many people on social media to “share feelings on everything from fascism to fishfingers.”

Foot massages and milkshakes

All this “emoting” and “recounting the mundane” is to him “decidedly odd.”

He noted that even Mr Aston, while denouncing Dr Stead’s “asinine posts” on Instagram was himself making posts about “foot massages, or milkshakes.”

But Aston also has a newspaper column. He used it to describe Dr Stead as Brick Tamland, a character from “Anchorman: The Legend of Ron Burgundy.”

Tamland is described in the film as a “man with an IQ of 48 … what some people call it mentally retarded.”

Mr Aston told the court that Dr Stead appeared to be “in on the joke” since she changed her profile picture on social media to the Brick Tamland character.

“One might ask: what was she supposed to do?” Justice Lee said.

Instagram posts made by Joe Aston were directly referred to in court during the defamation case. Picture: Supplied

“She was being seriously mocked by Australia‘s leading financial daily (who described her) as a gaping moron.

“There was an asymmetry of power.”

She was not running with a joke but trying to mitigate “the humiliation by attempting to get the impression of rolling with the punches.”

Because Dr Stead understood that Mr Aston did, as he had previously told people, have “the column inches” to mock her.

She had defamation law, and she has now used it.

‘Words matter’

Justice Lee said Dr Stead did experience a “high degree of subjective harm” and he concluded that the appropriate award of ordinary and aggravated compensatory damages should be $280,000.

“Words matter,” he said. “I can‘t help her feeling we wouldn’t be here … if he had chosen words with less vitriol.”

That shouldn’t be taken to mean that columnists need “to be mealy mouth in denouncing hypocrisy.”

But, if called to court, they should stand ready to “prove the truth” of their opinions.

Leading defamation lawyer Rebekah Giles, principal of Company Giles, who has handled defamation matters for Sarah Hanson Young among others, said the judgement is “a timely reminder: you can’t say whatever you want. You need to have a proper factual basis for your opinions. Sometimes, columnists will target people, and it becomes a campaign, but they need to be ready to prove the truth of what they are saying.”

In a statement after the judgment, Dr Stead said: “I am very pleased that his Honour has found the AFR and Mr Aston are liable for what they said about me.

“I hope the judgment brings an end to more than two years of personal embarrassment, anxiety and distress, although I will never be able to completely undo all the damage done.”

Nine Entertainment Co and Aston have not yet said whether they will appeal.