Broadcaster Erin Molan will not receive a damages payout after she settled her defamation case against the Daily Mail Australia over an online article she alleged portrayed her as “a racist”.
The 2DayFM and Sky News host was initially awarded $150,000 in damages last year after she had a partial win against the Daily Mail in the Federal Court.
Erin Molan sued the Daily Mail for defamation.Credit:Alex Ellinghausen
Justice Robert Bromwich found in August that a Daily Mail article published in June 2020 did not call Molan a racist, as she had alleged, but did defame her in other ways. He said Molan was entitled to a “substantial, but not excessive award of damages”.
The Daily Mail appealed against that decision. The Full Court of the Federal Court, with the consent of the parties, ordered earlier this month that Bromwich’s orders be set aside and that he preside over a new trial on a narrower range of issues.
Molan’s lawyers had accepted the Daily Mail’s argument that Bromwich “erred by failing to determine all of the issues raised” by one of its defences “and to consider all of the evidence relating both to that defence and to the issue of damages”, the Full Court said.
The parties attended mediation in Sydney on Thursday ahead of a new trial and the case was resolved out of court.
The Daily Mail’s solicitors released a statement after the mediation, which said: “The Federal Court defamation proceedings brought by Ms Erin Molan against Daily Mail Australia have settled.
“Both parties are happy with the resolution of the proceedings, which involved each party paying their own costs, but did not involve Daily Mail Australia paying any damages to Ms Molan.”
Molan sued the Daily Mail in 2020 over an article and two related tweets in June that year that reported remarks made by her during a 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, 2020, 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.”
Molan did apologise on air, and Bromwich found last year “there had been no refusal to apologise by the time of the publication of the 5 June online article”.
Bromwich found the article did not convey the defamatory meaning that Molan was “a racist” but conveyed five other defamatory meanings, including 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”.
The Daily Mail sought to rely on a range of defences, including truth. Bromwich rejected that defence and said the Daily Mail “went too far … 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.
Molan’s lawyers agreed during the appeal hearing that Bromwich had failed “to determine all of the issues raised” by the contextual truth defence. That defence would have been examined if the new trial had proceeded.
Molan was contacted for comment.
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