Gossip columnists walk a fine line, which Joe Aston stepped over, judge says

Federal Court judge the Honourable Justice Michael Lee. Picture: Aaron Francis.

In Justice Michael Lee’s own words, “a writer targeting and addressing the perceived folly or sins of others walks a fine line’’.

In wrapping up his judgment in Elaine Stead’s defamation case against Joe Aston, in which he awarded Dr Stead $280,000 in ordinary and aggravated damages, Justice Lee indicated that Aston had overstepped that line.

He referred back to comments he made in court in December, to the effect that all involved wouldn’t have found themselves in court had Aston expressed himself with less “vitriol’’.

Aston had referred to Dr Stead, a former director of the failed Blue Sky investment firm, as “stupid” a “cretin” and said she invested in “peanut start-ups’’.

Justice Lee articulated the tension which he said defamation law seeks to balance.

“The right to freedom of expression and the right to reputation. Consistently with protecting the right to expression, which is fundamental to the exchange of ideas, is that liberty is given to express ideas provocatively’’.

Quoting from a 1942 judgment, Justice Lee said “a critic is entitled to dip his pen in gall for the purpose of legitimate criticism; and no one need be mealy-mouthed in denouncing what he regards as twaddle, daub or discord”.

He went on to say, in his own words: “But the counterbalance is that for a writer’s opinion to attract protection it must, in truth, be an opinion, be related to a matter of public interest, and be properly based – these requirements mean a freedom to express one’s views, however foolish or malignant, does not become a licence to defame without lawful excuse. In essence this case is about whether this line the law draws was crossed.’’

Justice Lee said it wasn’t a surprise that Dr Stead and Blue Sky came under Aston’s scrutiny, but Dr Stead had argued that “not only did Mr Aston cross the line the law draws, but that he pole vaulted it’’.

Justice Lee found both protagonists to be credible and truthful witnesses, but in the end found that the defence argued, that of “honest opinion”, “has not been made out by Fairfax or Mr Aston and, as a consequence, Dr Stead is entitled to relief’’.

On Aston, the judge said he was “generally candid and impressive in giving spontaneous answers’’ during court proceedings.

But he did not accept key elements of Aston’s evidence.

“Mr Aston justified his position by invoking a well-known line of dialogue from a popular film, being “stupid is as stupid does”.

“I do not accept this evidence. Mr Aston is not to be confused with Forrest Gump. Although the distinction between actuality and appearance may have been lost on a fictional character of subnormal acuity, to anyone with a degree of sophistication, the difference is manifest.’’

“...it is fair to say that to describe someone as a cretin, in an unqualified way, conveys the notion of someone who is at one end of the continuum of human intelligence, being a person who is brainless or very stupid indeed. This is quite different to someone being silly or, at times, professionally incompetent.’’

Justice Lee said Aston was a “a talented and oftentimes highly entertaining wordsmith’’ who “is no respecter of persons’’.

“He gave evidence he has a ‘blank canvas’ to ‘target and address’ hypocrisy, cant, farce and misfeasance in the corporate and political world. From the perspective of readers who inhabit those worlds, Mr Aston’s work, with its characteristic acerbity, is no doubt often amusing; but one suspects the mirth of some readers might be mixed with a vague sense of disquiet that their behaviour might some day become the subject of his mocking focus.’’

The judge said the defence of honest opinion “has long been regarded as relatively difficult to establish’’ for a number of reasons.

The judge said that in one of the matters argued, it would be clear to a reasonable reader that it was Aston’s opinion.

“The language used is colourful, sarcastic and exaggerated, and would be understood in this way.

“The tone is set by the sarcastic headline, and this continues throughout the article with phrases such as “feminist cretin”, “a prodigious destroyer of capital”, “Riveting”, “No kidding”, “fatuous investments in peanut start-ups” and “The mind boggles”.

But while that and the second matter would be understood by a reader to be expressions of opinion, the judge found that the opinions were not based on material “that can be shown to be substantially true and amount to proper material. As a consequence, the defence fails.’’

In assessing damages, the judge took into consideration Dr Stead’s evidence that “the only thing I had in my life was my work”.

“... as a venture capitalist, my reputation is everything … It’s the only thing I have. It’s the only thing any fund manager has”.

“It follows that the appropriate and rational relationship between the harm sustained and the amount of damages awarded should reflect the fact that the law places a high value upon reputation and in particular upon the reputation of those whose work and life depends upon, among other things, their judgment.’’