OMG its TMI Part 2 – Personal Defamation on Social Media

In one of my first posts on this blog I touched on what exactly constitutes going too far when making comments on social media. Specifically with regard to employment and what might get you fired. In this next instalment I’d like to turn my attention to defamation. It’s a relatively new area but claims are starting to be tested by the courts in Australia. The NSW District Court handed down a landmark decision in 2013 on this very issue in the matter of Mickle v Farley[1].

In this case, Andrew Farley, a former student of Orange High School sent out a tweet and made a Facebook post about music teacher Christine Mickle. It appears that his father was a teacher at the same school and was leaving his employment. Andrew felt that Mrs Mickle was somehow responsible for this which led to his comments being made. This seems to be quite a common occurrence nowadays. Log on to your social media site of choice and spend five minutes scrolling. Among the many photos of cats, you’ll also stumble across a great stream of unfiltered angry rants about people, work and reality shows. The problems start to happen when people make references to someone either directly or indirectly. It just needs to be enough for a person to be identified by others whether or not there are names attached.

The same principles behind defamation law apply to social media, with the notable exception that this platform makes it far easier to prove the “grapevine effect.”  This was illustrated by the Queensland Court of Appeal in Roberts v Prendergast[2] in saying that this grapevine effect occurs where the defamatory statement has spread so far as to “emerge from its lurking place at some future date”, and in doing so would “convince a bystander of the baselessness of the charge.”

Defamation law in Australia requires some essential elements to be fulfilled before something becomes actionable. These elements are publication, identification and a defamatory meaning to be conveyed through the words used. Defamation legislation in this country does not truly specify what is defamatory or how it should be interpreted. These actions have been left to be interpreted and determined according to precedents set by case law.

Social media has brought this area in to a whole new light, given that anyone with an internet connection can be their own publisher. Consider that now a damaging diatribe can be posted online and seen by the masses before the writer has had time to cool off and realise what a bad idea it was. Facebook themselves have proven to be a fairly toothless tiger when dealing with defamatory posts and pages. In fact most reports on an offensive post will usually come back as having caused no violation of their community standards. Pages that have made serious accusations of people that have not been tried or proven in the law, or even some that seek to incite or inflame prejudice have been left standing as Facebook choose to interpret their own community standards. Having the issue settled by seeking legal redress for a page to be taken down by Facebook has also proven to be a fruitless exercise. The corporation is fairly secure operating under Californian law, safe in the knowledge that it would be a very rare thing indeed for one of their courts to grant an order seeking a page be taken down.

Thankfully Australian law has seen fit to act recently as illustrated by the cases I have mentioned above. In the case of Mickle v Fairley, his honour Elkaim SC DCJ pointed out in his decision that ‘…when defamatory publications are made on social media it is common knowledge that they spread. They are spread easily by the simple manipulation of mobile phones and computers. Their evil lies in the grapevine effect that stems from the use of this type of communication.”

However this does come with one caveat people need to be aware of. The damages awarded in this case were $105,000 (the defendant has since filed for bankruptcy) and the cap on damages is set at $355,500. This was the first time damages were awarded in a case of this kind. It’s inevitable that more cases will be heard on this matter and some firm common law foundations will be laid but in the interim any aggrieved party should bear in mind that pursuing litigation like in any area is an expensive exercise and larger windfalls are not guaranteed. After costs are paid you may end up with little to show for it if monetary gain for punitive purposes is your most significant factor.  There are indeed legal grounds for redress in these circumstances and it’s important to know what your rights are and what courses of action will be available to a party seeking to lodge suit.

I hope that this has provided some kind of insight in to this area and may at least provide a starting point before seeking to file any claim with the courts.

[1] [2013] NSWDC 295

[2] [2013] QCA 47

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