Broadcaster Erin Molan has been awarded $150,000 in damages after she had a partial victory in her defamation case against the Daily Mail Australia over an online story she alleged wrongly suggested she was an “arrogant woman of white privilege”.
In a decision on Tuesday, Federal Court Justice Robert Bromwich found a June 5, 2020, article by the Daily Mail did not call Molan a racist, as she had alleged, but did defame her in other ways. He said the Sky News host was entitled to a “substantial, but not excessive award of damages”.
Journalist Erin Molan, pictured in June last year, sued the Daily Mail for defamation.Credit:Alex Ellinghausen
In a small win for the Daily Mail, Bromwich found Molan “did engage in conduct that was likely to offend persons because of their race or ethnic origin” during a May 2020 broadcast of 2GB rugby league show The Continuous Call Team, which was the subject of the article. This served to reduce the damages payout.
Molan filed Federal Court defamation proceedings against the Daily Mail in 2020 over an article and two related tweets in June that year that reported remarks made by her during the 2GB broadcast, in which she referred to Pacific Islander NRL players by using the phrase “Hooka, Looka, Mooka, Hooka, Fooka”.
She maintained she was not mocking Polynesian names but referring to “a story that has been told multiple times on air” about broadcasters Ray Warren and Chris Warren attempting unsuccessfully to pronounce a Pacific Islander name, which made her fellow broadcasters the butt of the joke.
The June 5 Daily Mail article was headlined: “Erin Molan refuses to apologise for her ‘hooka looka mooka’ jibe on live radio – as Pacific Islander women slam her for being ‘complicit in racism’ by mocking their names.” In fact, Molan did apologise on 2GB on the afternoon of June 5, and Justice Robert Bromwich found “there had been no refusal to apologise by the time of the publication of the 5 June online article”.
“Subsequently she did apologise, albeit for what I have found that she actually did, which was to cause offence, not for what she did not do, which was to mock the names of Pacific Islander NRL players,” Bromwich said.
In his decision on Tuesday, Bromwich said the article “never expressly” stated Molan was a racist and did not carry that implication, but did defame her in other ways.
Molan’s lawyers had argued the articles conveyed a range of other defamatory meanings, including not only that she was “such an arrogant woman of white privilege that she has refused not only to learn how to pronounce the names of Polynesian NRL players but also to apologise for deliberately mocking them on air”.
Bromwich found the article did convey that meaning and four other meanings, including that Molan, “having deliberately mocked the names of Pacific Islanders on air, then lied about it by falsely claiming she was referring to an ‘in-joke’ between her and her co-hosts on the commentary team”.
He found two related tweets did not convey the single defamatory meaning alleged by Molan’s lawyers, meaning it was not necessary to consider any defences in relation to the tweets.
The Daily Mail sought to rely on a range of defences in relation to the article, including truth and honest opinion.
Bromwich rejected both of those defences and said the Daily Mail “went too far, were not careful enough, and made a number of material and defamatory errors”. However, he found that a defence of contextual truth was available in a limited respect to mitigate damages.
He said the Daily Mail had proven a separate, contextual meaning was true, namely that Molan “engaged in conduct that was likely to offend persons because of their race or ethnic origin” during the 2GB broadcast, “by putting on an accent and saying ‘Hooka, Looka, Mooka, Hooka, Fooka’. This finding is available to Dailymail.com to mitigate damages”.
“That said, I accept that this was ignorant or thoughtless conduct, rather than deliberate, as reflected in the genuine apology that she gave. I dare say she has been more careful since then,” Bromwich said.
Molan’s damages award is relatively modest. Damages for non-economic loss in defamation cases in Australia are capped at present at $443,000, a figure that is increased annually.
Further damages may be awarded in cases where the judge considers aggravated damages are appropriate.
Bromwich said that the defamatory allegations were “hurtful” but “not at the higher levels of seriousness and despite remaining online have not been demonstrated to be of an enduring nature, especially as they amount to unfounded allegations about transient conduct rather than more serious conduct such as illegality, or about her character”.
He said that “by any standard this is a substantial sum of money for closely interrelated and unwarranted online slurs, sufficient for any ordinary person to be well and truly satisfied that they were untrue and should never have been published”.
Molan is a former employee of Nine Entertainment, publisher of this masthead.
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