Overview

In the case of EFG (a pseudonym) v Trnka & Anor (Ruling) [2024] VCC 1882 (26 November 2024) our firm recently acted for a defamation plaintiff who successfully obtained an order that he continue a defamation proceeding under a pseudonym so that his identity was not disclosed.

The pseudonym order was granted to our plaintiff client in circumstances where:

• it was alleged the defamatory statements imputed that he had engaged in sexual misconduct with a minor (the imputation) and the publication had so far been restricted to a limited amount of persons within a small sporting community; and
• it was argued (successfully) that if our plaintiff client’s name was used in future media reporting about the defamation case, this would vastly increase the size of the pool of people to whom the defamatory statements were published and would further aggravate the damage caused to our client’s reputation.

Background

The plaintiff is an elite sports instructor working with children and young people (and also studying to be a primary school teacher).

The plaintiff sought a pseudonym order to anonymise his name as well as anonymise the name of two witnesses linked to the alleged imputation. In doing so, he argued that any media reporting of the alleged imputation with use of his name could have lasting effects, even if his defamation case was ultimately successful.

He expressed concern that in bringing the case to vindicate his name, there were risks of other potential damage to his reputation arising from the media reporting that could have effects on his future employment prospects and place him at risk of having to explain the allegations in both a professional and personal capacity for years to come.  It was argued successfully that a pseudonym order obscuring his name would mitigate the risk of further harm to his reputation.

In pursuing the pseudonym order on behalf of the plaintiff, we focused on the likely effect that media reporting about the alleged imputation would have on the plaintiff. In doing so, we raised various arguments, including:

• The making of the pseudonym order would involve minimal interference with open justice;
• In a matter such as this, the administration of justice ought also be concerned with protection of the plaintiff’s reputation;
• At the time of the hearing, the publication of the alleged defamatory matter had been limited to the sporting community in which the alleged events occurred and failing to make a pseudonym order could make the whole purpose of the litigation lost as ‘fair media reporting’ would bring attention to the allegations to a much wider audience;
• If the plaintiff was successful and the court vindicated his reputation, it is possible that existing media articles containing the allegations would remain online. Any future prospective employer conducting searches may have access to the article and the allegations made, which may impact the plaintiff’s ability to obtain employment;
• Identifying the plaintiff may psychologically impact him in addition to the distress already caused; and
• If the pseudonym was not granted, others in similar circumstances may be discouraged from seeking vindication of their reputation because the very bringing of the proceedings and the associated risk of media reporting may amplify the damage.

In reply, it was argued by the defendants that the plaintiff’s remedy, if there is to be one, is to be found in damages and not pursued under cover of a pseudonym because that is not the convention in the jurisdiction.  The defendants argued that it would be very unusual for the Court to grant the application sought, as it not the type of order usually made in defamation proceedings.

Court’s Analysis

Although Her Honour Judge Monova acknowledged that pseudonyms are not typically ordered in defamation cases, Her Honour noted that the cases to which the parties referred largely dealt with defamation proceedings which had been commenced after media reporting. Whereas in this case, there had not been any such reporting.

The Court found that this case was different because the plaintiff sought to vindicate only the damage done to his reputation so far and he specifically sought to avoid more damage by any reporting of the proceedings in the media.

The Court identified two key questions necessary to solve this legal issue:

• Whether prior to any determination, the plaintiff’s reputation ought to be subject to the real risk of further damage by media reporting of his attempts to vindicate it; and
• Whether the defendants should be exposed to the risk of having to pay higher damages on account of the publication of the defamatory statements to a wider audience, by the fair reporting of the proceedings in the media.

In answering these question, Her Honour considered principles underscoring open justice including that open justice is not an end in itself and can be maintained without unacceptable detriment to individual and to the administration of justice. Her Honour accepted the plaintiff’s argument that “mud sticks” and that future media reporting would risk further damage to the plaintiff’s reputation.

Orders were ultimately made in favour of the plaintiff anonymising his name and the other witnesses.

Takeaway

Depending on the specific circumstances of the case and following consideration of a number of factors including open justice principles, administration of justice, public interest, and the extent of the defamatory publications, a Court may be willing to order a pseudonym for a plaintiff in defamation if there is real risk to further damage of the plaintiff’s reputation by media reporting.

Danielle Snell, Managing Partner & Co-Founder | [email protected] | 0401 812 885.

Robert McGirr, Partner & Co-Founder | [email protected] | 0413 944 023.