Civil Law

By Phoebe Tulk

19.11.21

Defamation of Terrance Flowers in Cleo Smith Case

You receive a distraught call from your relative. A national news network has named you on their Facebook page, with a reach of over 1 million followers, as the man alleged to have abducted a 4-year-old girl. Pictures identifying you quickly spread across social media and the hostile comments flood in.

THE PUBLICATION

This was how Nyamal man Terrance Flowers spent his day on 3 November 2021, as a subject of hate around the country. That morning, 7NEWS had mistakenly reposted Facebook pictures of Flowers, who also uses the surname Kelly, in belief that this was the Terence Kelly recently arrested on suspicion for the abduction of Cleo Smith.The disappearance of Cleo on 16 October 2021 had attracted significant public attention. Her story became a headline in America, the UK, India, New Zealand, Switzerland, and Japan – to name a few. It was obvious that news of her discovery would garner just as much, if not more, international exposure.

And it did. After being incorrectly named by 7NEWS, Flowers was immediately barraged with violent online threats to such an extreme degree that he was reportedly hospitalised for severe anxiety.

THE CLAIM

Flowers has now commenced defamation proceedings in the Supreme Court of Western Australia. The statement of claim notes that Flowers has been “gravely injured in his character and reputation, and has suffered substantial hurt, distress and embarrassment and has and will continue to suffer loss and damage.”

Considering the magnitude of attention Cleo’s case attracted, and the extent to which the allegations against Flowers were republished, he may be entitled to significant damages.

DEFAMATION IN THE ACT

Defamation in the ACT falls under Chapter 9 of the Civil Law (Wrongs) Act 2002 (ACT).

Broadly, defamation consists of a communication of matter to a third party, that expressly or impliedly contains a defamatory meaning about a person. Pursuant to section 116 of the Act, this can include an article, advertisement, letter, email, and any other thing by means of which something may be communicated to a person.

Any person can sue for defamation, as can not-for-profit organisations. Although a corporation can only sue for defamation if they have less than 10 employees, a director or manager of any corporation can sue for harm to their reputation.

Monetary damages for defamation fall within a very wide range, and can be awarded in respect of consolation, reparation, and vindication. The extent of damage to one’s reputation is observed by the reaction of those to whom the defamatory publication is made. The wider the publication, the greater the public reaction, the greater the damage. If the publication is without justification and without lawful excuse, the defamed person will be entitled to substantial damages.

As at July 2017, Aulich Civil Law had achieved the highest ever damages award for non-economic loss in defamation in the ACT: Zwambila v Wafawarova [2015] ACTSC 171.

Evidently the team at Aulich Civil Law are highly practiced in the area of defamation. If you believe you have been the subject of defamatory content, it is important that you obtain legal advice on how best to handle the matter before it spirals. If you need assistance, please contact the team on (02) 6279 4222.