Radio station wins the right to claim damages from defamatory talkback caller

A legal case in Newcastle could result in the first ever instance of a talkback caller being sued for defamation.

There are two elements to the case.
The first is pretty straightforward, the second is more complicated.
A caller rang the 2HD overnight show and defamed an announcer on another station, who then sued for defamation and was paid $70,000 by 2HD in an out of court settlement in 2010.
A caller falsely alleged that Aaron Kearney, who was hosting 1233 ABC Newcastle’s breakfast at the time, had been convicted of drink driving three times in two years. The caller also falsely claimed that there was a report about the drink driving offence on the front page of the Newcastle Herald.

Presenter: Heading off to Morisset, Morning Geoff.

Caller: G’day mate, how are ya?

Presenter: Well mate, I’m ok, how are you?

Caller: I wanna know if you’ve got your copy of the Newcastle Herald this morning yet?

Presenter: Oh look I’ve got… No I haven’t. I’ve only got the Telegraph in front of me I’m sorry.

Caller: Ok, I’ve just got hold of my Newcastle Herald. Front page of the paper there… local ABC broadcaster Mr Kearney done for drink driving for the third time in two years.

Presenter: Is that right?

Caller: I, um, think it’s a might hypocritical how these people get on and they are all high and mighty about morals and standards and stuff yet they can’t follow the law themselves. I think it’s pretty bad and I think the ABC should do something about it. I don’t know what they can do it about it but I don’t think this bloke should be on the air. He’ll be on the air tomorrow, or today, pontificating as usual.

Presenter: Mmmmm.

Caller: And that’s not good enough really.

Presenter: Yeah, yes I see your point, Geoff. I’ll go and chase the paper and have a look at that story but you’re right. It’s no good them there… um… not so much dictating but at least communicating with his listeners about the safety of road… drinking issues (as used?) for arguments sake and then going out and getting stung twice in a row or?

Caller: *Unclear* Well this is the third time in two years.

Presenter: Third time?

Caller: That he’d been charged. Yeah.

Presenter: Right.

Caller: I mean, I don’t even know how you keep a licence with that sort of record.

Presenter: Yeah. Correct. No that’s interesting, interesting Geoff. I’ll go and chase that story, thank you.

Caller: Alright, thank you. Have a good day.

Presenter: You too, pal.

The allegations were defamatory, satisfying the three main criteria for defamation:
Publication – the comments were broadcast in full and not dumped. The host made no clarification or apology at the time of publication.
Identification – Kearney was identified by name and profession.
Reputation – the allegations were damaging to a media personality who traded on his good reputation as a news commentator.
Defences – there was no defence of truth available, because the information was not true. Likewise there was no defence of opinion or fair comment because the ‘facts’ of the case as outlined by the caller were false.
Up to this stage it was a normal defamation case. The station broadcast something it shouldn’t have, paid damages and apologised.

But now comes the twist, the first time a radio station has sued a talkback caller, as far as we know.
2HD filed a cross-suit against the caller, Craig Stephens, claiming he was jointly responsible for defaming Kearney. The broadcaster said the case had cost it more than $106,000 and wanted Stephens to pay part of the bill.
Judge Davies of the NSW Supreme Court agreed with 2HD and, on 27 July 2012, gave judgment in the matter (Kearney v 2HD Broadcasters Pty Limited t/as 1143 2HD [2012] NSWSC 321 ), that Craig Stephens should pay 2HD $47,518.28.
Stephens has not paid 2HD and now the station has signed over the unpaid debt to its lawyers Stacks Goudkamp to collect the money in lieu of some of 2HD’s legal fees.
In a ruling last month, Judge Davies gave leave for Stacks Goudkamp  to collect the money from Stephens.

The case is interesting because it potentially changes the onus for defamation away from the responsibility of the publisher, on to the caller.

Former manager of 2HD Guy Ashford told radioinfo the judge took a long time to make a ruling on the case because he was conscious that it would create a precedent.

“We have a dump button, but the announcer thought the caller was credible and at the time thought his story was backup by a story in the Newcastle Herald. It wasn’t… we ran the apology ten times and did what we should have to make amends, but I smelt a rat.

“I though the caller was purposely trying to entrap the announcer, so we investigated it and found the caller… The judge said the caller was 80% to blame for the defamation.”

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