Court awards hefty damages in Auckland defamation case

In Nguyen v Dinh [2024] NZHC 2358, the High Court has shown the reach of defamation law in New Zealand awarding a plaintiff a sizable NZ$780,000 in damages, shared between four defendants, as well as NZ$62,307 in costs over a series of posts on social media. None of the defendants filed any documents or appeared to oppose the claim, although that does not mean the allegations were admitted. The decision is a reminder of the significant awards of damages which the Court can order in cases where a plaintiff's reputation has been seriously injured.

The defamatory behaviour

The plaintiff, Ms Nguyen, was defamed by the defendants in a number of social media posts and comments on personal pages and in a Vietnamese community group.

The posts contained allegations which both explicitly and implicitly named Ms Nguyen, and included asserting that Ms Nguyen was guilty of a raft of crimes, including fraud, theft, hacking, and criminal conspiracy. The posts included pictures of falsified digital documents purportedly showing suggestive conversations between Ms Nguyen and a (fake) 17 year old hacker in Vietnam.

Justice Gordon noted the tight-knit nature of the New Zealand Vietnamese community, to which the plaintiff and defendants belong. The Judge concluded that the posts were defamatory in that they tended to lower Ms Nguyen in the estimation of right-thinking members of society and were likely to have exposed her to hatred, ridicule, or contempt.

In analysing whether, as the administrator of the social media community group, Dang Dinh was liable for posts made in that group, Justice Gordon applied the Court of Appeal's "actual knowledge test" from Murray v Wishart [2014] NZCA 461. That led Justice Gordon to determine that by pinning the post to the top of the group, an action only a group administrator could do, Dang Dinh had actively promoted the defamatory post. The post would be the first thing seen by anyone who visited the social media page.

Quantifying the harm caused - and the award

In assessing the impact of the defamatory behaviour, Justice Gordon took into account the fact that the plaintiff was well-known in the New Zealand Vietnamese community for her volunteer work and dedication to her community. The posts had "destroyed" her reputation within the community she had dedicated herself to since moving to New Zealand.

The Judge looked to the extent of publication by reviewing the number of interactions (comments, reactions and shares) the posts had, and noted the high volume of mutual friends between the plaintiff and the defendants.

When considering the quantum of damages, the Judge identified the defendants' aggravating conduct included falsifying digital documents and fabricating elaborate stories. An apology made by the defendants did not materially mitigate the damages calculation as the judge considered it was too little, too late.

Justice Gordon awarded the following damages against each of the defendants:

• NZ$365,000 against the first defendant, Dang Dinh, as sought;
• NZ$225,000 against the second defendant, Mai Pham, as sought;
• NZ$100, 000 against the third defendant, Julie Fam, as sought; and,
• NZ$60,000 against the fourth defendant, Minh Nguyen, which was NZ$40,000 lower than sought.

A further NZ$30,000 in exemplary damages from Dang Dinh was awarded, as well as costs against all defendants on a joint and several basis of NZ$62,307. None of the defendants took any steps to actively defend the defamation proceeding.

Lessons learned

This case serves as a reminder of the willingness of the Court to vindicate plaintiffs whose reputations have suffered serious harm by ordering significant sums in damages. Citing the English case of Cairns v Modi [2012] EWCA Civ 1382, Justice Gordon noted most interested bystanders are unlikely to care for the details of the judgment, they just want to know one thing: "how much did the plaintiff get?".

This article was written with the assistance of Tayla Gordon O'Meara, a Law Graduate in the Litigation and Disputes Resolution team