This is not a game: online falsehoods will cost you

Paralegal Ryan Wu assisted with preparing this article.

The Queensland District Court recently delivered judgment in the defamation case of Mitchell v Jobst [2025] QDC 41. The case between a video game champion and a content creator was an interesting application of the contextual truth defence, which failed despite most contextual imputations being substantially true, because the defamatory imputations were found to have caused further damage to the plaintiff’s reputation.

Background

The plaintiff, William Mitchell, is a prominent arcade and video gamer, finding success in games including Donkey Kong and Pac-Man. His records were recognised by Guinness World Records. The defendant, Karl Jobst, is a professional YouTuber. In late 2018, he began publishing videos about gaming world records and cheating.

In 2017, Twin Galaxies, an authoritative body for competitive gaming records, received a dispute challenging Mitchell's Donkey Kong records on the grounds that he used unauthorised emulation software instead of the game’s original hardware.

In April 2018, Twin Galaxies removed all of Mitchell's scores and banned him from competitive participation. Guinness World Records later disqualified his scores.

Mitchell commenced proceedings in defamation against another YouTuber, Benjamin Smith, professionally known as "Apollo Legend". Apollo Legend accused Mitchell of cheating in a YouTube video. They settled in August 2020. Apollo Legend agreed to remove videos and cease mentioning Mitchell, with a US$25,000 liquidated damages clause, if he broke this agreement. Apollo Legend was not required to pay Mitchell as he did not mention Mitchell again.

In December 2020, Apollo Legend decided to end his own life, following the publication of his “goodbye video”. He did not mention Mitchell or the settlement as reasons.

In May 2021, YouTuber Karl Jobst published a video falsely claiming Mitchell's lawsuit forced Apollo Legend into debt, contributing to his suicide, and that Mitchell expressed joy over his death. The video amassed over 500,000 unique views. Although Jobst briefly removed the offending remarks, he reinstated them after receiving a concerns notice from Mitchell's solicitors.

In July 2021, Jobst apologised for the claim that Apollo Legend was driven into debt and retracted it, but maintained his opinion on Mitchell’s impact on Apollo Legend's death.

Mitchell experienced significant emotional and physical distress. His paid appearance invitations significantly decreased. Organisers cited Jobst's allegations about Apollo Legend's suicide as the reason for cancellations. Online comments accusing Mitchell contributing to Apollo Legend's death persisted.

Litigation

Mitchell sued Jobst alleging his video conveyed the following defamatory imputations:

1. Mitchell required Apollo Legend to pay a large sum, causing debt and extra work.
2. A major contributing factor to Apollo Legend's suicide was the requirement to pay Mitchell a large sum.
3. Mitchell hounded Apollo Legend to death.
4. Mitchell was the main cause, or a cause, of Apollo Legend committing suicide.
5. Mitchell's conduct was a contributing factor to Apollo Legend committing suicide.

In his defence, Jobst pleaded “contextual truth”, meaning that the offending video contained the following alternative imputations, each of which was substantially true and as a result of which Mitchell’s reputation was not further harmed by the imputations that he alleged:

1. Mitchell was publicly exposed as having cheated to achieve his record scores in Donkey Kong;
2. Mitchell was banned from submitting scores to Twin Galaxies for cheating;
3. Mitchell had planned to create a video that he could fraudulently use as evidence that he had achieved a score of 1,062,800 in Donkey Kong;
4. Mitchell had callously expressed joy at the thought of Apollo Legend’s death; and
5. Mitchell used litigation to force third parties to recognise his achievements in video gaming.

Succeeding in a contextual truth defence requires both (a) proving the alternative “contextual imputations” were also conveyed and are substantially true and (b) as a result of this the plaintiff’s reputation was not further harmed by the defamatory imputations pleaded by the plaintiff. For example, a plaintiff may plead a publication conveyed an imputation they are violent, but if the publication also conveyed an imputation the plaintiff is a murderer, and this is shown to be true, the contextual truth defence is likely to succeed, because the imputation of violence is unlikely to cause further harm to the defendant’s reputation than the true contextual imputation that the plaintiff is a murderer. In the context of the whole publication, the imputation is not defamatory.

Jobst also pleaded contextual imputations (a), (b) and (e) above as evidence of Mitchell’s prior “bad” reputation, to deny that the defamatory imputations caused his reputation any harm.

In a colourful insight into the world of gaming, witnesses included “Penguinz0” and “Jimmy Nails,” a content creator and pinball and arcade themed bar owner respectively, as well as a Donkey Kong software expert.

The Court’s decision

Barlow DCJ found:

1. All defamatory imputations were conveyed.
2. The first limb of the contextual truth defence was satisfied for all but imputation (c). That is, the contextual imputations alleged were conveyed and substantially true.
3. However, the defence failed on the second limb. That is, despite the substantial truth of Jobst’s contextual imputations, the defamatory imputations pleaded by Mitchell caused greater harm to his reputation than the contextual imputations. In particular, imputing Mitchell hounded Apollo Legend to death caused more harm than expressing callous joy at someone’s death. As his Honour explained:
   “The former imports a momentary or short-term emotion, while the latter imports a deliberate course of action intended to cause harm to the other person and that itself is callous. While the former is certainly not honourable, the latter is far worse.”
4. Despite Mitchell’s ‘prior bad reputation’, namely being exposed as a cheat and using litigation against unfavourable critics, the defamatory imputations did harm his reputation. Their seriousness eclipsed any mitigating effect his prior bad reputation had, even though the imputations concerned the same ‘sector’ of Mitchell’s reputation as his prior bad reputation. Importantly, while the Court took into account Mitchell’s reputation as a cheat, the Court made no finding Mitchell had in fact cheated and acknowledged his records were ultimately restored by Guinness Records.
5. General damages were awarded in the sum of A$300,000. Barlow DCJ noted that this was not one of “the most serious cases” which warranted a quantum closer to the prescribed limit under section 35. In doing so, Barlow DCJ factored in the "grapevine effect" of defamatory matter published online. This refers to the viral effect of defamatory material online, which facilitates the repetition of defamatory statements and continual harm to a plaintiff's reputation.
6. Aggravated damages were awarded in the sum of A$50,000 due to the following aspects of Jobst’s conduct:
7. • Reckless indifferent to facts.
   • Repetition of the defamatory statements following their initial removal.
   • Use of sensationalised and extravagant language to exacerbate harm.
   • Acting with malice toward Mitchell.
   • The lack of genuine apology and retraction. Despite Jobst’s “retraction video”, Barlow DCJ found that Jobst publicly maintained his belief that Mitchell was responsible for Apollo Legend’s death.
   • Inappropriate conduct during litigation, namely, continuing to publicly maintain his claims.

Key takeaways:

Limits of the contextual truth defence: Even if the defendant proves the substantial truth of the contextual imputations, the defence will fail if the plaintiff’s pleaded defamatory imputations are more serious and cause greater harm. Here, Jobst’s accusations of contributing to someone’s suicide were more serious than accusations of cheating or callousness.

Significance of reputation sectors: Where a plaintiff has a 'prior bad reputation,' courts will examine whether defamatory statements concern the same 'sector' of their reputation. The statements must concern the same sector as the contextual imputations or prior bad reputation alleged, for either of these defences to be viable. But in this case, even though the Court found the contextual imputations and the prior “bad” reputation concerned the same sector as the defamatory imputations, this did not mitigate the harm caused to Mitchell’s reputation by the defamatory imputations sued upon.

How to determine the relevant reputation sector: The Court found that the alleged bad reputation, the contextual imputations and the imputations sued upon all concerned the one sector of Mitchell’s life and reputation: that as an arcade gamer with a number of world records. Despite the fact that hounding someone to death could be seen as a more general part of one’s reputation, the Court looked at the gaming context in which this occurred to find that it concerned the same gaming sector of Mitchell’s reputation.

Internet defamation and “The Grapevine Effect”: The viral nature of defamatory matter published online is a relevant factor when assessing the quantum of damages. It recognises the persistence and repetition of defamatory statements and therefore the consequent harm to reputation, especially where their withdrawal is not communicated.