Constance Hall loses court battle with website creators, ordered to pay thousands, but also wins counterclaim

Perth mummy blogger Constance Hall has been ordered to pay the creators of her now-defunct website, Queens of Constance, $15,000 for failing to produce enough content that would have helped make it financially successful. Annabel and Jody Olward, who run website design firm Superminimal which built the now non-operational site, took the mother-of-seven to court claiming she breached the terms of their agreement and cost them more than $100,000 in potential revenue. After Ms Hall went viral following her social media post on parent sex in 2016, the Olwards approached her with a proposal that centred on them building the site for free in exchange for 50 per cent of the advertising revenue. Ms Hall agreed to the proposal and a contract was drawn up between the parties with the mummy blogger agreeing to produce content for the site. However, at trial, she denied she was required to produce a set number of blog articles for the website or agreed to the frequency. She also argued other content was provided in the form of “Queentributions” — contributions from her fans — as well as her previous posts on her Facebook page and that the Olwards were responsible for generating the advertising dollars. But in his decision, District Court Judge Christopher Stevenson, who has now retired, found there was an implied term in the agreement Ms Hall would provide original written content and media consisting of posts at a frequency of two to three times per week which would then be uploaded by the Olwards to the website. He also found that was an oral agreement that Ms Hall would also regularly take part in a forum on the site where she would interact with her fans. During the trial, Ms Hall testified that she told the Olwards that she wanted the website to be modelled on the Mamamia website which features content from contributors, and for it to be a space for her “Queens”. She also testified that she understood the site would generate its own audience and that it would help grow her social media following, which was estimated to be over 1 million by the end of 2016. Jody Olward testified that as part of managing the site, they were responsible for sourcing advertisers and used digital ad networks such as Google AdSense to provide the ads. But Jody said the primary driver of ad revenue on a website was traffic, and in order to increase a site’s traffic, you needed new content. The court was told the site performed well after the launch, with Ms Hall creating three blog articles a week. But by the middle of March — just before the launch of Ms Hall’s book, Like a Queen — she contacted Annabel explaining she only wanted to produce one article a week, which she agreed to. The trio parted ways in mid-February 2017. Judge Stevenson said it was clear both parties “did not fully understand the magnitude of the tasks involved in their commercial venture” and that there was a “world of difference between ad hoc blogging on Facebook at a time of one’s own choosing and convenience, and the harsh reality of having to write regular posts, motivated by financial gain, for publication on a website in order to maintain traffic to the website”. “This can be seen by the inability of the defendant (Ms Hall) to create original content for publication on the website after a short period of time (even allowing in part it may have been because of the defendant’s other business interests, including the launch of her book),” he said. “Consequently, and as a result of the defendant’s inability to produce regular blogs for the website, the plaintiffs experienced an increasing inability to generate appropriate and sufficient advertising revenue from the website. Without regular and consistent traffic numbers to the website potential advertisers were not motivated to engage, as their clients’ interests are also motivated by commercial imperatives. Put another way, the plaintiffs did not have anything to sell or trade.” Judge Stevenson said the profitability of the website was always directly linked to the generation of original content by Ms Hall and its publication on the website. And he said he also found the mummy blogger tried to mask her own failure to comply with the contractual obligations by insisting she wanted ‘Queentributions’. He awarded the Olwards $15,000. During the trial it was agreed Ms Hall would be paid $5250 as part of her counterclaim but the details were not discussed. “Finally, I would add that the blog which led to this litigation was not tendered in evidence (others were) and therefore I have been spared the time of having to read it. Whether this is a missed opportunity I will never know,” Judge Stevenson said.