Last week, Daily Mail Australia had a significant win in the courts that you may not have heard about. It concerned a defamation case brought by Anton Smolin, an engineer from Sydney who the publication alleged serially harassed and abused women he met on dating apps.
The 43-year-old denied the reports and sued for defamation, claiming that he had been defamed by being portrayed as a sexual predator.
In the course of gathering evidence in preparation for the trial, solicitors acting for Daily Mail Australia discovered the existence of a self-published e-book titled Seduction Chronicles of a Psychopath, penned by Smolin and released publicly in 2014. The book details “fundamental concepts and theory of modern day seduction” according to a promotional blurb written on the review site Goodreads.
The book was once listed for sale on Amazon but Smolin attempted to scrub the existence of the book from the internet, so lawyers acting for the Daily Mail obtained a copy of the book via a subpoena.
Smolin and Daily Mail Australia then agreed to a settlement, in which Smolin agreed to pay costs and had a judgment made against him, after it became apparent Daily Mail lawyers would use the book in their defence against his defamation claim.
Daily Mail Australia’s lawyers have received permission from the court to refer the e-book to police, as it contains apparent admissions by Smolin to the commission of serious criminal offences.
Under normal circumstances, the use of documents obtained for a court case is restricted solely to use in that case, a rule known as the Hearne v Street obligation (or sometimes as the Harman undertaking). This is the same rule that Justice Michael Lee recently found former Liberal staffer Bruce Lehrmann to possibly be in breach of, after Lehrmann provided evidence from his high-profile criminal trial in the ACT to Network Seven ahead of a televised interview.
The 305-page e-book features graphic descriptions of sexual interactions, including what has been described by Daily Mail Australia as possible child abuse material, as well as the author’s views on the age of consent and the law governing consent itself.
Defamation law expert and professor at the University of Sydney David Rolph told Crikey that Smolin “joins another long line of cases where defamation plaintiffs would have been well-advised not to sue”.
Regarding Hearne v Street, Rolph explained that “where a party gets documents or information in court proceedings by compulsion such as by subpoena, they can only use those documents or information for the purposes of the proceedings in which they were given. If the party wants to use them for any other purpose, including as in this case referring a matter to the police, they have to be released from the obligation by the court”.
He further said that the threshold for whether a party would be released from that obligation was whether they could “demonstrate to the court that there have been special circumstances … in circumstances where there’s a suspicion of criminal conduct, that would be a basis upon which a court would release a party from the Hearne v Street obligation”.
In this case, District Court Judge Judith Gibson said in the judgment that “while the power to grant leave is not lightly exercised, the facts of this case are exceptional.”
“This was never a confidential publication,” she said.
“To the contrary, the plaintiff published his ‘tell-all’ book to the world at large, offering it for sale on Amazon, in circumstances where its existence was not difficult to ascertain because of the book reviews which remain online.”
