Defamation: The Social Media, Social-distancing Edition
With many of us working from home, we are increasingly relying on technology, including social media, to keep us connected. It is easy to forget that the increased use of social media (and the publication it relies on) exposes us to a greater risk of defamation claims (and potentially increases the damages flowing from those claims given the ease of widespread publication). It is also particularly topical given the NSW Court of Appeal’s confirmation of the Voller decision, and the implications that has for companies who have social media pages.
This article sets out a high-level overview of the operation of defamation law by reference to recent Australian social media cases. This first page-spread addresses the elements of a defamation claim – a defamatory imputation, which is published to a third party, and which is about the plaintiff. The second page of this article details some of the key decisions around damages (assuming no defence is made out, noting that following the NSW Court of Appeal’s decision in Voller, the defence of innocent dissemination is likely to play an increasingly important role) before briefly turning to the future of defamation in the social media context and some practical considerations for ‘the now’.
Element 1: Does the material contain a defamatory imputation, as determined by reference to the ordinary reasonable person?
Who is the ordinary reasonable person?
The person is to be determined by having regard to:
- different temperaments, outlooks (e.g. some are naturally suspicious and others naturally naïve) and degrees of education;
- the tendency to draw implications more freely than a lawyer, particularly derogatory implications and are prone to a degree of loose thinking;
- the tendency to read between the lines in light of their general knowledge and experience; and
- the tendency to take into account emphasis given by conspicuous headlines or captions,
and then finding the midpoint of all those temperaments, abilities and tendencies.
Can memes contain a defamatory imputation?
A photo taken at an 18th birthday party, and posted to Facebook, went viral inspiring the creation of satirical memes and media stories about the plaintiff’s haircut he pleaded were defamatory.
“Expression of views concerning hairstyle, or trends such as vegetarianism, or of dislike for a celebrity are insufficient, without more, of imputing actionable meanings unless there is some defamatory act or condition capable of being conveyed, in circumstances where the absence of darker meanings is “palpable””.
What about material which is not in English?
Proceedings were commenced by an Archbishop against a former parishioner who maintained a persistent campaign of criticism against the Archbishop on Facebook, including in posts in Arabic.
The defamation of the Archbishop was held to be serious, including that he has failed the Church, is evil and worse than ISIS, is violent, drunk, dishonest and incompetent. It did not matter that the statements were in Arabic rather than English.
Damages of $150,000 and a permanent injunction were awarded.
Defamation via private text messages?
McIntosh sent text messages with defamatory imputations to a close friend.
The Court held that the text messages sent by McIntosh were different from the usual ‘spontaneous, informal text messages often sent to family or friends’, and that they were comparatively longer, structured, and grammatically correct. Le Miere J emphasised that the ordinary reader would read the text messages as considered statements, not informal text messages. Further, applying the Thornton principle, it was sufficient that the words complained of were capable of sustaining harm to Armstrong by lowering him in the estimation of right thinking members of society generally.
Armstrong was awarded $6,500 in damages, including $1,500 for aggravated compensatory damages, and an injunction was issued against Mr McIntosh restricting him from publishing the words or any similar words defamatory of the Plaintiff.
Incorporation of defamatory material through a hyperlink?
Bailey put a hyperlink, together with some neutral text on her Facebook page. The hyperlink re-directed Facebook users to YouTube content which was clearly defamatory of Bottrill (it suggested that Bottrill was a member of a satanic group and a satanic paedophile group).
The text Bailey included was held to be a sufficient snippet or context to entice a searcher to click on the hyperlink. The neutrality of the text under the hyperlink was not sufficient to constitute refutation and it didn’t matter that it was automatically generated. The circumstances gave rise to incorporation of the defamatory content.
Element 2: Did the defendant participate in the publication of that material to a third party? (and, in the social media context, who is the participant where a post is liked or commented on by someone else?)
What is participation in publication?
Following Trkulja, the test for publication is ‘tolerably clear’. It is whether a person has participated in the publication. Participation must be deliberate or with knowledge, but regardless of the degrees of participation. Whether a person who includes a hyperlink to defamatory material has participated in the publication is a matter of context such as the circumstances of the post on the host page and accompanying words or content on the page (including whether it adopts, repudiates or discounts the original statements).
Tweets can be a defamatory publication on their own, even if they link to a balanced article
Hockey sued the publishers for (among others) Tweets by The Age comprising the words “Treasurer for Sale” or “Treasurer Hockey for Sale” which linked to substantive articles.
The court considered that a tweet can be evaluated in isolation, without regard to its hyperlinked version, as not all readers will click through to the full article. The length of a tweet was not an excuse for defamation – a 140 character limit would still have permitted alternative forms of eye-catching promotion of the articles without limiting them to the statements used.
Hockey was awarded damages totalling $200,000 including $80,000 for the two tweets by The Age. In determining the quantum, consideration was had to the fact that it is unrealistic to expect that every Twitter follower reads every tweet (and so the number of followers is not conclusive as to the reach of a publication on Twitter).
Liability for the poster, irrespective of author
O’Reilly commenced defamation proceedings against Edgar and alleged that a total of 22 defamatory imputations were posted on ten Facebook posts. Edgar claimed that he was not the ‘author’ of some of the posts (as they had been written by someone else), however the Court held that this was immaterial – defamation is about publication not authorship.
The Court further held that the award must be conscious that an award of damages needs to be sufficient to convince a bystander, who later learns of a slur through the “grapevine”, of the baselessness of the charge. Damages of $250,000 were awarded, having regard to amounts awarded for other social-media based defamation.
Liability for Facebook comments
This case involved a development dispute, which led to former political candidate Aldridge publishing two Facebook Posts regarding Johnston including that he was greedy and selfish. The posts were liked and shared (9,000 and almost 13,000 times, respectively).
The court determined that Aldridge’s liability for secondary publication of the Facebook comments did not require proof that Aldridge could directly control the authors of the comments or that they were complicit. He had to establish that he could not, with reasonable diligence, have known about the defamatory material in the comments. So, Aldridge was considered responsible not only for the defamatory contents of his own Facebook posts but also for the defamatory comments of others on his posts and Johnston was awarded $100,000 in damages.
Knowledge and control (or ratification) are key for secondary publication
Von Marburg, a specialist medical practitioner, claimed that he was defamed by two publications on a public Facebook – one was a post, and the second was three comments directly to the Facebook page by Facebook users.
Dixon J considered the applicable principles in respect of pleading internet publication in defamation proceedings. Two factors are required – control and knowledge. Individuals can be liable as secondary publishers of defamatory material if they have the knowledge that the material is defamatory and the ability to control (e.g. remove) it. This extends to circumstances where a failure to remove the content and allow continued publication of it essentially ratifies it.
Is liking an endorsement?
Eardley, a senior police officer, commenced an action in relation to a segment on a Channel Nine News broadcast which she alleged imputed that she was responsible for posting a string of sexist posts about Greens MP Jenny Leong which aimed to bully, attack and humiliate Leong.
To support its truth defence, Nine Network asserted that the fact that Eardley had liked one of Nine Network’s posts meant she had endorsed it. This was rejected – McCallum J stated: “each of those imputations poses an objective enquiry as to whether the plaintiff was responsible for or an instigator of the relevant posts or campaign respectively.” The “liking” of a post is not the same as posting the material oneself.
Liability of a media company for comments on its public Facebook page
Voller was a detainee at a youth detention centre. A Four Corners program entitled “Australia’s Shame” featured graphic footage of Voller being restrained in a chair and subject to other maltreatment by guards of the detention centre. The defendants used their public Facebook pages to disseminate links to news stories about Voller. The public could comment on the public Facebook page. Voller alleged that some of the comments made on the Facebook pages were defamatory.
Each of News Corp, Australian News Channel (Sky News) and Fairfax Media (now Nine) were held to be the primary publisher of third party comments on their public Facebook pages, even where they as the ‘publishers’ had not been requested to remove the content or even put on notice of the relevant content. They were held out as primary publishers because they allowed and encouraged comments and they had the capacity to hide comments until they could be monitored and vetted, but did not do so.
The court also issued a reminder that those who post comments on Facebook posts are not automatically absolved of liability – they can be found liable separately as primary or secondary publishers.
‘Liking’ which draws attention to a statement
Bolton alleged that numerous posts by Stoltenberg on his Facebook page gave rise to defamatory imputations including that Bolton was corrupt and dishonest, and compared Bolton’s conduct to that alleged of Don Burke, Craig McLachlan and Harvey Weinstein.
Stoltenberg operated a public Facebook page known as ‘Narri Leaks’ on which Loder published content. Stoltenberg (and others) set up a filter which required administrators to approve posts before they were published to the Facebook page. However, comments on posts could be made before without being reviewed.
Payne J found that the act of “liking” a post was not enough to attract liability based on the facts before him. However, he noted that such conduct could attract liability if evidence showed the “like” had drawn the attention of others to the post (for example if it caused the post to appear on another person’s Facebook feed). Without further evidence of such an effect, liking a post is not analogous to hyperlinking to defamatory content.
Loder was found to have published comments on one of Stoltenberg’s posts which endorsed his post, drew attention to those words and urged other to express their agreement with the post, amounting to an act of authorisation of the original post. Bolton was awarded $110,000 in damages (plus $10,000 in interest and costs). $10,000 was for the comments made by Loder on one of Stoltenberg’s posts.
Element 3: Is the imputation about the plaintiff?
Per section 9 of the Defamation Act 2005 (NSW) (and equivalent provisions under the Uniform Defamation Laws 2006), a corporation cannot bring a claim for defamation unless it was an ‘excluded corporation’ at the time of publication. A corporation is an excluded corporation if it is not a public body and either:
- the objects for which it is formed do not include obtaining financial gain for its members or corporators, or
- it employs fewer than 10 persons and is not related to another corporation.
Where a publication is potentially ‘defamatory’ to a corporation but only mentions the company name (eg, Meriton) and not the name of individuals behind the company (e.g. a senior executive), owners and managers cannot simply bypass legislative limitations including section 9 by suing for defamation as individuals. In order for the “man or woman behind the company” reported on being able to sue for defamation when they are not explicitly referred to, an individual must demonstrate a bridge in the article between he or she and the company. “General notoriety”, or evidence the individual is publicly connected with the company, will not in and of itself be sufficient.
Aggravating defamation damages
Stokes and Ragless were both members of a shooting club with different ideas about the direction the club should take. Stokes alleged Ragless defamed him in 132 publications (including on a Facebook page, links to which were emailed to members of the club).
The imputations were “clearly capable of exposing a person to hatred, contempt or ridicule, or causing a person to be shunned, or adversely affecting a person’s reputation when measured by how the ordinary, reasonable reader would understand the publication”.
The Court ordered general damages of $70,000 and aggravated damages of $20,000. The quantum of damages was partly due to the efforts of Ragless to attract people from outside the shooting community to the website and Facebook pages on which the defamatory statements were published, his failure to issue any apology and his insistence that his accusations were truthful despite a lack of evidence.
Spurious defences can aggravate Twitter and Facebook defamation
Farley (a student) posted abusive and defamatory tweets about Mickle (his teacher, and acting headmistress) on Twitter and Facebook. Elkaim SC DCJ at : “When defamatory publications are made on social media it is common knowledge that they spread… Their evil lies in the grapevine effect that stems from the use of this type of communication.”
Mickle was awarded $105,000. $20,000 aggravated damages were given because: (1) Farley deliberately ignored a letter sent by Mickle’s lawyers after the defamatory posts were made, and (2) Farley’s apology was contradicted by the pleaded defence of truth (and so the defence was raised spuriously).
You can ‘damage’ a reputation that is not exemplary
Noone, a nursing director at a retirement village, was alleged, via Facebook, to have bullied staff, forged signatures, misused medication and otherwise acted negligently. During proceedings, Noone’s reputation was called into character, including comments from Smith DCJA that her answers were misleading and deceptive, and that she was not entirely frank with the court.
General damages of $10,000 and aggravated damages of $5,000 were awarded in respect of the statements found to be defamatory. This amount was determined having regard to the factual findings that the damage to her reputation caused by the undefended imputations was “not like someone with an exemplary character being defamed.”
Damages for personal attacks to limited audiences on Facebook
Greeuw posted to her personal Facebook page the comment: “separated from Miro Dabrowski after 18 years of suffering from domestic violence and abuse. Now fighting the system to keep my children safe.” Dabrowski sued for defamation.
“Defamatory publications on social media spread easily by the simple manipulation of computers. A public Facebook page is able to be viewed worldwide by whoever clicks on that page and the grapevine effect stemming from the use of this type of medium must be considered (ref Mickle v Farley). However it must also be recognised that Facebook is a source other than a mainstream news or information provider.”
Dabrowski was awarded damages of $12,500. This was despite the fact that there was no financial loss, the remarks were made by an estranged spouse to a limited audience, and removed after 6 weeks.
Significant damages can apply even where there is a limited audience and publication timeframe
Scott made Facebook posts which were essentially warnings that three establishments owned/operated by Rothe were being used to rehome paedophiles.
Gibson DCJ observed that Defamation actions in relation to social media allegations of an extreme nature, generally without any basis and driven not by mere malice but some kind of Internet “road rage”, are increasingly common before the courts.
Rothe was awarded $150,000 in damages, including $50,000 aggravated damages. The entitlement to ‘substantial damages’ was adjusted downwards having regard to the extent of the publication (primarily Nambucca Heads) and the short time of the publication on Facebook.
Defamatory posts about health professionals
Al Muderis, an orthopaedic specialist, operated on Mazzella (second defendant). Mazzella alleged complications associated with the operation, none of which withstand scrutiny, but posted a series of publications on Facebook, YouTube and Pinterest that vilified the plaintiff. Duncan joined in that vilification.
The award ($160,000 payable by Mazella and a further $320,000 payable by both defendants for aggravated damages) was in part to take into account the grapevine effect and the fact that the allegations focused on Al Muderis in his professional capacity, where reputation is ‘extremely high or at the highest possible level’ and so the imputations are ‘extraordinarily damaging’.
Statements on public Facebook profiles cause more damage than private ones
Reid (a football CEO) sued Dukic (a soccer coach) over nine defamatory posts published on Dukic’s Facebook wall, including allegations of fraud, dishonesty, theft and racism. Dukic removed all posts shortly after the claim was commenced.
It was relevant that Dukic’s profile was set to public, rather than private – as the posts were accessible to anyone, whether they were a “friend” of the defendant’s on Facebook, a Facebook user or someone that was neither. Default judgment was entered and damages of $180,000 ($160,000 and $20,000 aggravated damages) were awarded.
It is widely acknowledged that defamation law has failed to keep pace with the changing landscape – including the significant role played by social media. As many of us embrace working remotely, and spend ever-more time on social media platforms, including newly popular platforms such as Zoom, it is clear that there is real risk in relation to defamation on social media, both for individuals in their personal capacity, and for organisations who use social media as a platform to promote their businesses (and whose employees use those platforms in a work capacity). It’s also worth bearing in mind that, the most serious cases of online defamation can attract criminal penalties (including imprisonment).
The confirmation of the Voller decision, and the recent damages awards highlighted above emphasise that it is a dangerous time to be (or facilitate) a ‘keyboard warrior’. Reform in this area is coming – it is hoped that they will, among others, better strike the balance between people defending their reputation through claims (including ‘neighbourhood disputes’ which have moved online, aided by social media), and not clogging up the courts where there isn’t any actual damage done to that person’s reputation.
In the meantime, some practical steps you can take to reduce the risk of being held liable for defamation through social media are:
- ensuring privacy settings for social media pages are appropriate (a private social media page will lessen the scope of publication, and therefore damage);
- having clear policies for your marketing and social-media teams to follow relating to moderating user-generated contributions to public social media pages (such as through filtering or blocking of certain words or phrases; and swiftly taking appropriate steps, such as removal, if content is defamatory). The policies should balance the need to remove defamatory content compared to removing all negative posts (which could give rise to a misleading or deceptive conduct claim); and
- ensuring any defences made out are legitimate (and not, for example, apologising for publishing defamatory statements and then pleading the defence of truth).
This article was originally published in Communications Law Bulletin Vol 39.3 (June 2020 – Bonus Edition).
 Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller  NSWCA 102
 Trkulja v Google Inc  HCA 25 at , .
 Mosslmani v DailyMail.com and others  NSWDC 264 and others at 
 Zaia v Eshow  NSWSC 1540 [Note the later case of Zaia v Eshow  NSWSC 740 where Eshow was held in contempt of court for breaching the injunction.]
 Armstrong v McIntosh [No 4]  WASC 31
 Bailey v Bottrill (No 2)  ACTSC 167
 Ibid at 
 Hockey v Fairfax Media Publications Pty Ltd  FCA 652
 O’Reilly v Edgar  QSC 24
 Johnston v Aldridge (No 2)  SADC 72
 Von Marbug v Aldred & Anor  VSC 467. The substantive proceedings are yet to be heard, this was an application for leave to amend the pleadings.
 Eardley v Nine Network Australia Pty Ltd  NSWSC 1374 at 
 Voller v Nationwide News Pty Ltd and others  NSWSC 766. Damages are yet to be determined in this case.
 Bolton v Stoltenberg  NSWSC 1518
 Triguboff v Fairfax Media Publications Pty Ltd  FCA 845
 Stokes v Ragless  SASC 159
 Mickle v Farley  NSWDC 295
 Noone v Brown  QDC 133
 Dabrowski v Greeuw (2014) WADC 17
 Ibid, Bowden DCJ at 
 Rothe v Scott (No 4)  NSWDC 160
 Al Muderis v Duncan (No 3) NSWSC 726
 Reid v Dukic  ACTSC 344
 e.g. s529 Crimes Act 1900 (NSW)
 Fairfax Media Publications and Ors v Voller  NSWCA 102
 Mickle v Farley  NSWDC 295
This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.