A Queanbeyan lawyer has won a defamation battle with online forum ZGeek after its contributors attacked her for disclosing explosive information about jury misconduct in the original trial of Sydney serial gang rapists Bilal and Mohammed Skaf.
The ACT Supreme Court ruling confirms that the owners of online forums can be vicariously liable for defamatory material posted by their users, that individual posts must be considered in the broader context of a discussion thread, and that posts on a generally humorous website cannot be defended as "trivial" when they takes on a serious and aggressive tone.
A decade ago, the Skaf brothers were put on trial for a series of gang rapes in Western Sydney, committed by them and a group of other youths.
The notorious crimes attracted significant public attention at the time and led the NSW Parliament to pass tougher laws for gang rape.
But the brothers' convictions for the rape of a 16-year-old girl in 2000 were quashed after it was revealed two jurors had conducted their own investigations in the case, visiting the park where the crime occurred despite a judge's direction not to do so.
Those revelations came to light after the jury foreman told an acquaintance, Queanbeyan lawyer Gabriella Jean Piscioneri, that he and possibly other jurors had gone to the crime scene.
Ms Piscioneri, who was not involved in the trial, came forward with the information to the court, as was her duty, and the convictions were quashed on appeal.
Both were later convicted at a second trial and resentenced, after NSW brought in new laws to enable a retrial without the victim having to give evidence again.
Following media reports on the case in 2005, forums appeared on the ZGeek website talking about Ms Piscioneri under the headings of "Tool of the Week" and "Bitching and Rants".
Much of the content was obscene and attacked her for coming forward, some describing her as a "f---ing moron" and a "stupid b---h", although some of the later posts supported the lawyer's actions.
The lawyer was alerted to the content four years later, and requested an apology and for the material to be taken down.
More posts were made in 2010, one under the title "Latest desperate attempt to silence ZGeek", which were also alleged to be defamatory.
Ms Piscioneri then started defamation proceedings in the ACT Supreme Court in 2011, alleging the posts implied she was unjust, indecent, extremely wicked, immoral, and insane, among other things.
The posts, she argued, implied she was responsible for Bilal Skaf's retrial and reduction in sentence, and acted incorrectly by coming forward.
Her claim alleged she was brought into hatred, ridicule, and contempt, and had been gravely disparaged and her reputation injured.
The defendant, ZGeek owner and administrator Anthony Scott Brisciani, denied those imputations arose from the posts, and said the entirety of the content, read in context, vindicated the lawyer for her actions.
Mr Brisciani – who started the discussion of the lawyer's actions through his own "Tool of the Week" post – also argued his website was a "silly site", that was "extremely irreverent" and should not be taken seriously.
The forums, he said, never tried to be a "source of truth", but rather served as an online community for people to organise games and get-togethers, only attracting about 1000 active users.
Mr Brisciani submitted the initial posts were made not knowing that Ms Piscioneri had a responsibility to report the jurors.
He argued the posts were "based on the truth of the media coverage at the time and fair comment", and pointed to a disclaimer on the site saying all the material on the site were the opinions of those posting.
Justice John Burns found in favour of the plaintiff on Tuesday, and ordered Mr Brisciani pay $82,000 in damages.
He found that the discussion under the "Bitching and Rants" topic, except for its first post, was not defamatory.
That was because the thread, when read in its entirety, vindicated the lawyer's actions in coming forward about the jurors and made clear she had a legal obligation to do so.
The "Tool of the Week" forum, however, was found to be defamatory, conveying that the lawyer had acted unethically and exposing her to hatred, ridicule and contempt, and not making it clear she had a legal duty to do what she did.
The 2010 posts were also found to be defamatory.
Mr Brisciani's defences of qualified privilege, honest opinion, and triviality, all failed.