It began with a Facebook post on the page of a community group, and it ended in legal action that lasted years and cost hundreds of thousands of dollars.
The case, an example of where defamation laws are being increasingly used by ordinary people against each other, involved two Border doctors locking legal horns to settle a dispute to devastating effect.
For years, the Helpers of God’s Precious Infants had been protesting outside an abortion clinic in a quiet residential street in Albury. In 2014, the debate heated up.
On one side was Dr Pieter Mourik, a pro-choice campaigner and obstetrician who had delivered thousands of babies across a 40-odd year career.
He believed the Helpers were invading the privacy of women visiting the clinic to have an abortion.
On the other side was surgeon Dr Roland von Marburg, an ear, nose and throat specialist, father-of-eight and supporter of the Helpers and Abortion Hurts Albury, a group that believed most women are forced or coerced into abortion.
Dr Mourik said he wasn't on Facebook, but he received a writ from Dr Marburg because of a post he was accused of backing.
Dr Mourik was the spokesman for Rights to Privacy Albury, which was campaigning to get an exclusion zone outside the Englehardt Street clinic to stop the staging of vigils.
The group had enlisted a student to create a Facebook page where it posted meeting times and shared articles.
They also posted photos of the Helpers of God's Precious Infants when they were outside the clinic.
Dr Mourik's group argued that the Helpers were breaching the privacy of the women entering the clinic so it was only fair that the protesters' privacy should also be compromised.
On October 16, a photo of Dr von Marburg was published and, according to a Supreme Court hearing, the following words were posted: “Here is a photo of the only doctor in Albury Wodonga who would stand outside a legal, Women’s Health Clinic, violating women’s privacy! This is, in our opinion, highly unethical ... Women have the right to access any medical service without their privacy being infringed or subject to harassment.”
Three people, according to the court, posted derogatory comments about Dr von Marburg beneath the picture. None was posted by Dr Mourik.
Dr von Marburg sued for defamation. But he did not pursue the people who posted the arguably more damaging comments.
He sued the young administrator of the Facebook page and Dr Mourik, who he alleged directed the student or personally edited the page. In one of his first statements of claim, Dr von Marburg said he briefly went to the clinic to speak to his wife who often spent time in peaceful vigil outside. He said he was deeply concerned about the comments which were published in a way to undermine his medical practice and professional reputation.
A University of Technology Sydney paper published this year found public figures fighting media companies were no longer the main users of defamation laws.
Researchers looked at 189 defamation cases between 2013 and 2017 and found more than half involved digital publication, including 16 that arose from Facebook posts and four from tweets. Just 21 per cent of plaintiffs were public figures.
Australia’s first Twitter defamation case went to trial in 2013. A music teacher from the NSW town of Orange was awarded $105,000 because a comment a former student made about her online. In 2016, a Queensland man had to pay his ex-wife $10,000 because he wrote on his own Facebook page that she was a “thieving, lying, money-crazed bitch”.
Victorian bar president and defamation expert Matt Collins QC said the law should provide an easy remedy for online defamation, but it didn’t.
“The law provides an expensive and slow remedy. At a procedural level, defamation actions are too complicated, take too long and cost too much.”
He said Australia could create a threshold test similar to Britain, where trivial cases were refused.
“In my long experience of seeing people whose reputations have been affected in an instant ... overwhelmingly, what they want is someone in authority to say what is published about them is false.”
It was a nightmare. Emotionally, physically and financially. And who were the winners? The winners were the lawyersDr Pieter Mourik
District Court Judge Judith Gibson heads up the defamation list in NSW, where there have been 90 cases in a four-month period this year alone.
The legislation was so out-of-date, Judge Gibson said, that it could not cope. There were no limitations on when someone could sue over an online post and, Judge Gibson said, the system was set up so the cases went to trial.
“So that means the litigation costs are enormous,” she said in a Walkley Foundation talk this year.
The case of Dr Mourik and Dr von Marburg, who was unavailable to comment, dragged through the court for three years.
It became less about Facebook posts and more about philosophical differences.
Dr Mourik ended up settling just before a 21-day trial. He had to publicly apologise and pay out $180,000. Legal costs were hundreds of thousands more, but he said the emotional cost was higher still.
“It was a nightmare. Emotionally, physically and financially," Dr Mourik said.
“And who were the winners? The winners were the lawyers.”
- The Age
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