Daily Mail lodges appeal in Federal Court over Erin Molan defamation

Daily Mail Australia has lodged an appeal against the Federal Court decision which found it defamed journalist and commentator Erin Molan by alleging she was racist in an online article.

The Sky News Host last year sued the online publisher for defamation, saying an article and two tweets by the news site falsely portrayed her as racist and an “arrogant woman of white privilege” because of her pronunciation of Polynesian names.

Justice Robert Bromwich handed down its reasonings in favour of Molan in August, finding five imputations put forward were not found to be proven to be substantially true by the publisher regarding the online article.

He was not satisfied that imputations put forward by the two tweets were conveyed.

In his judgment, Justice Bromwich found both sides had a “measure of success and a measure of failure”.

He ordered Daily Mail Australia to pay Molan $150,000 plus interest in damages, including aggravated damages for the online article only as she was entitled to the “substantial, but not excessive award”.

However, the online newspaper on Tuesday lodged a notice of appeal against the decision.

It is not yet clear what grounds the publisher is appealing, but it is understood to be against both the cost of damages and the defamation ruling.

In his judgment, Justice Bromwich said the sum was substantial for “closely interrelated and unwarranted online slurs, sufficient for any ordinary person to be well and truly satisfied that they were untrue and should never have been published”.

“I consider this sufficiently meets the sting of the article as reflected in the imputations,” he said.

“Dailymail.com needs to substantially improve the care that it takes, or face further and greater awards of damages. Freedom of expression must be balanced with responsibility and basic professionalism which was sadly lacking in this case.”

The Mail’s story was based on Molan saying “hooka looka mooka hooka fooka” on the show in May 2020.

While the judge ruled in Molan’s favour, she was still found to have been “ignorant or thoughtless” and caused offence by saying the words on air.

Justice Bromwich said the Daily Mail’s suggestion that Molan was being racist was not conveyed in the article.

However, he conceded that she was “unwitting and careless” in making the comment and had not acknowledged that she did “even the slightest thing wrong”.

In his judgment Justice Bromwich aid the Mail wrongly alleged that Molan “callously and deliberately mocked” the names of Pacific Islanders, then lied about it by claiming she was referring to an in-joke.

He found the publisher also wrongly alleged that she had refused to apologise and that she was an “arrogant woman of white privilege for behaving in this way”.

During the trial, the publisher argued that the imputations carried were true – and Molan had demonstrated a “pattern” of racist comments in her time at 2GB’s Continuous Call Team program.

Acting on behalf of the Daily Mail, Bruce McClintock SC told the court in September 2021 that Molan’s attempts at accents were forms of “ugly racial stereotypes”.

However, Molan told the court it was a lighthearted jab at legendary commentator Ray Warren, who had been overheard sounding out players’ names with his son and fellow commentator Chris.

She claimed Daily Mail had “distorted and misrepresented” what she said in the 14-second segment “so as defame her in the way of six imputations, each of which relied on the June 5 online article”.

Justice Bromwich found the online article was “not, in my view, one that was ‘tinged with, or even pregnant with, insinuation or suggestion’ going much beyond what was overtly stated, or such as to implicitly ‘invite the reader to adopt a suspicious approach’.”

“The June 5 online article was blunter and more directly critical. It stated what Ms Molan was said to have done, as had also been stated the previous day in the June 4 article, and reported on the reaction to that reported behaviour,” he said.

“The ordinary reasonable person, even with the propensity to loose thinking, would not, in my view, make the substantial leap of equating the use of the phrases ‘complicit in racism’ and ‘complicit to racism’ about what she was said to have done.”

Justice Bromwich suggested the Daily Mail should “sensibly and promptly” take down the article if it had not already done so.

In a statement following the judgment, Daily Mail Australia’s managing director Peter Holder said the company was “very disappointed” by the result.

“Despite the court finding that five imputations were false and defamatory of her, we would like to highlight the court also found it was factually true that Ms Molan, during the 2GB Continuous Call Team program, engaged in conduct that was likely to offend people because of their race or ethnic origin, and the people likely to be offended were NRL players with Pacific Islander names and their community,” Mr Holder said.

“It is also worth noting the court further held that while the Daily Mail article did not call Ms Molan a racist and that it was therefore not appropriate to make any determination on that issue, by reason of her ‘intemperate behaviour’ in prior broadcasts – including faking accents, and arguably advancing racial stereotypes – she was at ‘some peril’ of an adverse conclusion.”

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