Rebel, Rebel, this payout’s a mess.
That was the view of three Court of Appeal judges in the Supreme Court of Victoria on Thursday when they ruled that Justice John Dixon, the judge in Rebel Wilson’s defamation suit against Bauer Media, had been wrong to award her almost $4.6 million in damages just under a year ago.
"The Court of Appeal held that, for a considerable number of reasons, the critical inferences drawn by the judge could not be upheld," justices Pamela Tate, David Beach and David Ashley wrote in their 250-page judgement.
"It followed that the judge’s award of damages for economic loss had to be set aside. Further, there was no basis in the evidence for making any award of damages for economic loss."
The appeal court judgement was a slap in the face for Wilson, who had tweeted the night before it was handed down that she felt she had already won. But it will be greeted with a huge sigh of relief from the media, which had displayed an uncommon unity in the face of what it perceived as a massive blow against press freedom in the initial ruling.
Fairfax (publisher of this masthead), News Corp, the ABC, Macquarie Radio and Channels Nine and Seven had all tried to join Bauer in appealing the damages but the court refused their application.
In June 2017, Justice Dixon awarded Wilson $650,000 in damages for non-economic loss (the pain and suffering component), and $3,917,742 for economic loss.
That figure was well above the typical payout in defamation cases, and was arrived at by dint of some complicated and highly speculative mathematics.
Rebel Wilson at the 2018 G’Day USA gala in Los Angeles in January.
Two "expert" witnesses from Hollywood testified that Wilson ought to have landed up to four roles over the 18 months following the May 2015 release of Pitch Perfect 2, and to have earned at least $US5 million for each of those roles.
But instead, she entered a lean period that she claimed was due to the damage to her reputation that followed the publication of a string of defamatory articles in Woman’s Day and on Bauer’s websites.
Justice Dixon accepted their prediction, then rounded it down to three roles, and applied a discount of 80 per cent – to account for tax, agent fees and the opaque relationship between Wilson and her company Camp Sugar (which contracts her services to film producers) – to arrive at a sum of $US3 million, or $3,917,472 at the applicable exchange rate.
With Dakota Johnson in the 2016 film How To Be Single.
The Court of Appeal has now judged that sum manifestly excessive. It has reassessed Wilson’s non-economic loss to be worth $600,000. More tellingly, it has struck the economic loss damages in their entirety.
The Court of Appeal ruled that Judge Dixon had been wrong to conclude the articles had spread like a "firestorm" on the international "grapevine", ruining Wilson’s reputation and standing in Hollywood.
He had been wrong to accept the evidence of the Hollywood experts who could not suggest a single role for which Wilson had been in line before the stories broke.
And he had been wrong to accept that her established value was $5 million per role.
He was not, however, wrong to find that the articles were defamatory or malicious in intent.
While the Court of Appeal ruling restores a semblance of sanity in the world of defamation law, it does not let the media off the hook. That $600,000 figure is still high, and reasserts the obligation of the media to operate with a degree of responsibility and accuracy that was sadly lacking in Bauer’s reporting with respect to Wilson.
In their judgement, the judges ruled that while the articles were clearly defamatory, there appeared to be "scant evidence" they had been discussed widely or for a prolonged period in the US. They noted that neither of the expert witnesses called by Wilson's team had even been aware of these articles "at any relevant time".
The judges ruled that Wilson’s team had not demonstrated that her alleged employment downturn was due to anything other than the normal fluctuations in a performer’s career. They noted that, in fact, she had secured plenty of work during this "downturn", including stage roles in the US and UK, and commercials in the UK, including one for British Telecom in 2015 that paid $1 million and one for booking.com the following year that paid the same amount.
Wilson, second from right, in Pitch Perfect 2 (2015).
They also noted that Wilson’s contract negotiations for Pitch Perfect 3 had begun in September 2015, when she was allegedly at her least signable.
Nor had Wilson’s team produced evidence of actual roles slipping through her fingers because of the stories.
"It was not enough for the plaintiff to show … that somewhere 'on the shelves' of some film studio there was an idea or project which, if it ever came off the shelf, and perhaps with adaptation, may have fitted her", they wrote.
The judges also found that Wilson’s putative value of $5 million per role was wildly out of step with her actual earnings.
On Pitch Perfect 2, her most lucrative role to date, her declared earnings were "a little over $4.5 million". On How To Be Single, in which she had a lead role, they were $2 million. For Grimsby, released in March 2016, she earned "almost $270,000".
For her TV series Super Fun Night, for which Justice Dixon accepted she had been paid "about $2 million", the Court of Appeal found she had in fact been paid "amounts for writing, producing and acting … amounting in all to $274,708.20".
A suppression order on reporting her earnings for subsequent roles remains in place.
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