Assisted by Elisabeth Krstanovski
In the Federal Court case of Chau v Australian Broadcasting Corporation (No 3)  FCA 44, Chinese-Australian business leader and philanthropist, Dr Chau Chak Wing ('Dr Chau'), was awarded $590,000 in damages caused by defamatory publications by the Australian Broadcasting Corporation on a Four Corners program titled 'Power and Influence'. The respondents in this case also included Fairfax Media Publications Pty Ltd and journalist, Nick McKenzie.
On 5 June 2017, the ABC broadcasted a program titled 'Power and Influence' on their investigative journalism program, Four Corners. This episode addressed spying, clandestine activities, the interference of the Chinese Communist Party in Australia and included direct references to Dr Chau. The program was broadcasted in multiple timeslots and made available online. It was viewed by around 1.1 million people.
Dr Chau claimed the program made six defamatory imputations including that he:
- betrayed his country, Australia, in order to serve the interests of a foreign power, China, by engaging in espionage;
- was a member of the Chinese Communist Party and carries out the work of a secret lobbying arm of the Communist Party;
- donated sums of money to Australian political parties as bribes to influence decisions;
- paid corrupt espionage agent of the Chinese Government, Sheri Yan, to assist him in infiltrating the Australian Government on behalf of the Communist Party;
- paid a $200,000 bribe to President of the General Assembly of the United Nations, John Ashe; and,
- was knowingly involved in a corrupt scheme to bribe the President of the General Assembly of the United Nations.1
The Court found that four of the six allegations were directly conveyed to the "ordinary reasonable viewer" of the program. These imputations included imputations two, three, five and six listed above. In this context, the Court found that the 'ordinary reasonable viewer' was an individual who was well researched, watched the whole broadcast and understood that the program was informative about a matter of public concern.
The Court found that the high viewership of the program severely damaged Dr Chau's reputation and called for a significant award of damages. The Court awarded Dr Chau $590,000 in damages, which included aggravated damages, general damages, and pre-judgment interest.
The Court also issued a permanent injunction that restrained the publishers from publishing or making parts of the program that conveyed any defamatory imputations about Dr Chau available online. The Court explained that an injunction is effective to "enable a claimant to have a remedy that is effective in protecting ... his, her or its legal right".2
If this action had been commenced in the State court system, it may have had some issues with jurisdictional limits and the power of the District Court to grant a permanent injunction which appears to be unsettled. An advantage of the Federal Court is to overcome that jurisdictional barrier.
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