FILIPINA DOCTOR LIVING IN THE US SEEKS INTERLOCUTORY INJUNCTION TO RESTRAIN DEFENDANTS FROM UPLOADING DEFAMATORY VIDEOS INVOLVING HER

Agustin-Bunch v Smith [2021] VSC 158 (12 April 2021)

Plaintiff files for an interlocutory injunction to restrain the defendants from publishing or causing to be published in any form, or maintaining online for download, or uploading so as to make available for publication online videos made by the defendants mentioning the plaintiffs which are said to be defamatory and misleading.

Facts:

The first plaintiff  (‘Dr Farrah’) lives in Texas. She qualified as a doctor of medicine in the Philippines. The second defendant (‘Doc Adam’) is a company whose sole director is Dr Smith’s partner. That company derives substantially all of its revenue from payments made to it by Facebook and YouTube for advertisements added to videos uploaded to those platforms.

The first defendant (‘Dr Smith’) is a medical practitioner in general practice in Werribee. The second defendant (‘Doc Adam’) is a company whose sole director is Dr Smith’s partner. That company derives substantially all of its revenue from payments made to it by Facebook and YouTube for advertisements added to videos uploaded to those platforms.

On 24 December 2020, the plaintiffs by writ sought damages, a permanent injunction restraining the defendants from publishing certain material, and a mandatory injunction for the removal of certain publications from the internet that they allege is defamatory.

The plaintiffs applied for an interlocutory injunction restraining the defendants from publishing or causing to be published in any form, or maintaining online for download, or uploading so as to make available for publication online videos made by the defendants mentioning the plaintiffs.

Dr Farrah deposed that in the first to seventh videos, Dr Smith paints a false narrative about her and then proceeds to shame her for it. Her evidence was that the publications collectively have had a profound and devastating effect upon her, her family and DRF. She asserted that her reputation has been severely damaged and that her mental health has suffered. Dr Farrah claims that she and her family have been subject to death threats, hate, bullying, harassment, trolling, and hundreds of thousands of further defamatory publications have been posted about her by third parties.

Dr Farrah contended that she has a reputation within the (Victorian) jurisdiction, as:

(a) she has a high profile in the Philippines as an advocate of Philippines’ traditional and alternative indigenous medicine;

(b) DRF sells products through a distributor in Sydney;

(c) her publications have been watched and understood by at least 500 people in Australia; and

(d) she has 24,000 followers from Australia on one of her Facebook pages.

Issue: Should the claimants who, in this case, are an individual and a small trading company resident and operating in the USA, obtain an interlocutory injunction to take down and restrain further instances of allegedly defamatory publications published on internet platforms by an individual/small trading company resident and operating in Australia, which are directed predominately at an audience who are resident in the Philippines?

Law/Jurisprudence:

• Bonnard v Perryman acknowledges that the judge on an interlocutory application should not, save in the clearest cases, usurp the role of the tribunal of fact by granting interlocutory relief against publications that may later be found not to be defamatory or to be otherwise defensible.

Analysis:

There is a significant risk that if the defendants were restrained from any further publication and required to take down the impugned publications, the public debate that communicates educational information, submitted to be of critical importance to the health and welfare of millions of poor Filipinos, would be significantly compromised.

There is a clear public interest that members of a community generally should not suffer in ignorance of health choices fairly available to them. The consequences of significant restraint of free speech on a matter of substantial public interest cannot be accepted simply to ensure that the plaintiffs should not continue to suffer reputational damage, if that be likely, when the consequences of defamatory statements that are unsuccessfully defended will be an award of damages, which may include special damages.

In response to the claim for injunctive relief in defamation, the rule in  Bonnard v Perryman  is a powerful consideration in favour of concluding that the balance of convenience favours the refusal or the relief sought.

Conclusion: The plaintiffs’ application is hereby refused.

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