Beware of what you wish for…

In our April issue, we discussed that we are more similar than we think. Those similarities include intolerance. Think about the proportionality of negative thoughts over positive ones. By habit, I have found my negative thoughts seem to be greater than the positive ones. This made me think – why is that so? So, I started eliminating the negative and accentuating the positive, just like in the old Bing Crosby tune.

I read an interesting Huffington Post article titled “Why It’s So Easy to Be Negative (and What to do About It)“. Renee Jain writes “The negativity bias is a tendency to have greater sensitivity to negative than to positive events. Some researchers posit that, psychologically speaking, negative events weigh close to three times more than positive events. While this bias may serve us in situations related to survival, it can cause distress in everyday encounters. So the question becomes: How can we topple this negativity bias?” I recommend Jane’s original article in “Good Therapy“.

And along came the defamation case because of the mistake of accentuating the negative

Here is a recent case in the District Court, to get you thinking twice about negativity, which led to a defamation case and a very unwanted result. This shows that the result of negativity could be a suit in defamation. See Raynor v Murray [2019] NSWDC 189

The case involved the tort of defamation arising from emails from Mr Raynor, the chairperson of the Watermark, to the residents. Ms Murray was a tenant. The chairperson wrote to residents relating to mailbox theft. The defendant was one of the recipients and the email attached an article published in the Manly Daily Mail dated 20 December 2016 containing warnings to the following effect. Superintendent Arthur Katsogiannis, from the fraud and cybercrime squad, was quoted in the article as saying that while on the surface mail fraud might seem like a petty crime, local criminals, known as “boxers”, were selling documents to international crime syndicates for identity theft as well as keeping credit cards for their own use; residents were urged to secure their mailboxes and strata managers should consider secure placement and design of letterboxes as well as CCTV.

Ms Murray replied to the chairperson’s email, according to the court, in the following derisive terms “Wow, What’s your take on this?” She questioned how her mailbox being left open could help a thief break into the Watermark building’s locked mailboxes. The chairperson replied setting out the advice he received from a locksmith.

The mailboxes were broken into for a second time. The chairperson sent a second email to residents and asked residents to keep their letter boxes locked. The chairperson wrote again to Ms Murray asking if she had left her mailbox open or had it been opened by someone else. Ms Murray did not reply.

There followed another email from the chairperson as well as a copy to the managing agent, noting once again that Ms Murray had left the mailbox open, including that this may have contributed to mailbox theft and indicating she could incur financial liability if the mailboxes had to be re-keyed.

Ms Murray replied and this reply became the matter that was the subject of the case. She complained she was being harassed by “many emails” from the chairperson. She used the words “the latest topic” was the open letterbox and she asked the chairperson if he had opened the letterbox himself as part of “his months of campaigning to have all residents comply with your demands”.  She derided the “Mission impossible” scenario that her unlocked mailbox played any contributing role to the break-ins and complained the chairperson had “never asked why we keep the letterbox open”. She concluded with the complaint that the chairperson’s “consistent attempt to shame me publicly is cowardly” and that it was offensive, harassing and menacing through the use of technology to menace me”.

The case involved the tort of defamation arising from emails from Mr Raynor, the chairperson of the Watermark, to the residents. Ms Murray was a tenant. The chairperson wrote to residents relating to mailbox theft. The defendant was one of the recipients and the email attached an article published in the Manly Daily Mail dated 20 December 2016 containing warnings to the following effect. Superintendent Arthur Katsogiannis, from the fraud and cybercrime squad, was quoted in the article as saying that while on the surface mail fraud might seem like a petty crime, local criminals, known as “boxers”, were selling documents to international crime syndicates for identity theft as well as keeping credit cards for their own use; residents were urged to secure their mailboxes and strata managers should consider secure placement and design of letterboxes as well as CCTV.

Ms Murray replied to the chairperson’s email, according to the court, in the following derisive terms “Wow, What’s your take on this?” She questioned how her mailbox being left open could help a thief break into the Watermark building’s locked mailboxes. The chairperson replied setting out the advice he received from a locksmith.

The mailboxes were broken into for a second time. The chairperson sent a second email to residents and asked residents to keep their letter boxes locked. The chairperson wrote again to Ms Murray asking if she had left her mailbox open or had it been opened by someone else. Ms Murray did not reply.

There followed another email from the chairperson as well as a copy to the managing agent, noting once again that Ms Murray had left the mailbox open, including that this may have contributed to mailbox theft and indicating she could incur financial liability if the mailboxes had to be re-keyed.

Ms Murray replied and this reply became the matter that was the subject of the case. She complained she was being harassed by “many emails” from the chairperson. She used the words “the latest topic” was the open letterbox and she asked the chairperson if he had opened the letterbox himself as part of “his months of campaigning to have all residents comply with your demands”.  She derided the “Mission impossible” scenario that her unlocked mailbox played any contributing role to the break-ins and complained the chairperson had “never asked why we keep the letterbox open”. She concluded with the complaint that the chairperson’s “consistent attempt to shame me publicly is cowardly” and that it was offensive, harassing and menacing through the use of technology to menace me”.

Ms Murray defended her position and pleaded justification pursuant to s25 Defamation Act 2015 (NSW) (Defamation Act).  She also pleaded the defence of honest opinion pursuant s31 of the Defamation Act and qualified privilege at common law and triviality pursuant to s33 of the Defamation Act.

The imputations pleaded as arising from the email by Ms Murray to Mr Raynor dated 25 May 2017 were as follows:

1.  The plaintiff unreasonably harassed the defendant by consistently threatening her by email.

2. The plaintiff acted menacingly towards the defendant by consistently threatening her by email.

3.  The plaintiff is a malicious person who sent threatening emails to the defendant and copied in other residents of the Watermark building for the express purpose of publicly humiliating the defendant.

4.  The plaintiff is a small-minded busybody who wastes the time of fellow residents on petty items concerning the running of the Watermark building.

The relevant standard of “the ordinary reasonable reader” includes recognition that such a reader may draw inferences, particularly where the matter complained of is of a sensational nature (as is the case here), and that such a reader may engage in a certain degree of “loose thinking” (Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245).

When discussing an email communication, amongst other things, the judge said “…… care that needs to be taken in relation to electronically based publications, whether these are emails, website publications, social media, text messages and the like”.  This is something we have written about numerous times in our newsletters and specifically in July & September 2018.

The court found each alleged imputation referred to in 1 to 4 inclusive failed to be established by Ms Murray.

Ms Murray alsofailed to establish the defence of justification.  To do so a defendant must specify the particulars of truth to support a plea of justification with the same precision as in an indictment.

The court found Mr Raynor’s evidence credible but not that of Ms Murray.
In relation to the trivial defence, the court found Ms Murray did not establish that the matters complained of by Mr Raynor were unlikely to cause harm to him.
In relation to the defence of qualified privilege at common law, Ms Murray failed to satisfy the test that the publication was sufficiently relevant, germane or that it had enough connection to that occasion. Without establishing these, there is no defence of qualified privilege. She published that the matter complained of to humiliate and insult Mr Raynor in the eyes of other residents of the building and she was motivated by her hostility and ill-will towards him.

The court was satisfied that Ms Murray was aware of the falsity of her allegations. She knew Mr Raynor emails were not harassing and she was not harassed by him.

For a summary of the case, you may like to read The Sydney Morning Herald article.

Conclusion

The lesson to be learned from this article is to be aware of what you write. Keep personal attacks out of communications. Understand that if you live in strata or company title, things should be done for the general good. Criticism should be instructive, not an attack. If you want to write something angry, think first about the repercussions. Decisions made in anger are often bad. If you need to type the bad communication don’t send it. Leave it on the shelf. Review it the next day and if you still need to say something, edit out the attack and high emotion and stick to the facts. Try to mediate and find compromise.  Don’t put yourself in a corner where compromise becomes impossible.

Most disputes can be resolved – even with difficult people.