Defamation is more common now on social media than ever before due to the evolving use of technology and the internet. For a defamation claim to be successful, the publication must contain the following:
- Must be proven to be defamatory;
- Must identify the Plaintiff; and
- Must be communicated to a third party.
What is defamatory material?
In Parmiter-v-Coupland1, the Court held that defamatory matter damages a person’s reputation and negatively affects their standing in the community. People in the community are led to think less of the defamed person.
The meaning attached to alleged defamatory matter is determined by what the ordinary, reasonable reader would interpret the published matter as meaning.
Can a Facebook like be defamatory?
According to present authority, liking a Facebook post, without more, does not constitute defamation.
In Eardley v Nine Network Australia Pty Ltd2, the Court rejected the Plaintiff’s argument that liking a post on Facebook is effectively the same as posting the material oneself.
In Bolton v Stoltenberg3, the Court held that although one of the Defendants had “liked” 64 posts on the alleged defamatory Facebook page that did not constitute the person being liable as a publisher. The Court claimed that a decision had yet to be made regarding whether liking a post on Facebook would constitute liability on that person as a publisher. Further, Justice Payne stated:
“I do not regard “liking” a Facebook post, of itself, as analogous to conduct of the kind described by Kourakis CJ of “drawing the attention of another to defamatory words…[resulting in] primary, or at least secondary, participation in the publication”. “Liking” a post is not, at least on the limited evidence before me, the same as hyperlinking a defamatory article in the way the operator of the website was found to have done in Visscher v Maritime Union of Australia (No 6)”.
Can Sharing a Facebook Post Constitute Defamation?
Sharing a post to Facebook can constitute defamation, regardless of whether you add further comments to the original post or not. However, there has not been a case specifically on this point in Australia as yet.
Based on the authority of Trkulja-v-Google Inc4, sharing a Facebook post can constitute defamation. The Court stated that in relation to the question of whether a Defendant is a “publisher” of defamatory material, depends on the degree to which the Defendant has been involved in the publication and whether he or she had the intent of making the publication. The Defendant’s involvement is proof that they were involved in the publication.
Can Sharing a Hyperlink Constitute Defamation?
In Bailey v Bottrill (No 2)5, it was held that sharing a hyperlink on a Facebook page was defamatory. While the post itself was not defamatory, the active hyperlink in the post directed readers to the Youtube page which included defamatory material. The Court held that the Defendant was a primary publisher. In determining that the Defendant was a publisher, the Court held that establishing the active hyperlink to the defamatory material into her post was participation in publishing it.
The Court followed the High Court case of Trkulja-v-Google LLC6, where they held that participating in publication would constitute publication for the purposes of defamation. In that case, the Court held that where a person has control over the content of his or her Facebook page, they are the author of that defamatory content published along with others who have access to it. In this case, when the Defendant shared the link, it was her conduct that caused the defamation and that establishes intent to communicate defamatory matter.
Likewise, in Visscher v Maritime Union of Australia (No 6)7, an online journal article that included an active hyperlink to defamatory matter was found to be a publication for the purposes for defamation.
In the case of Urbanchich v Drummoyne Municipal Council8, the Defendant had published another’s defamatory statement which attached to his or her own property. The Court held that the Plaintiff must establish that the Defendant had ‘more than mere knowledge’ that the statement was defamatory and provide them with the opportunity to remove it. Should the statement not be removed despite being aware of its defamatory nature, the Plaintiff is required to prove that the Defendant “…consented to, or approved of, or adopted, or promoted, or in some way ratified, the continued presence of that statement on his property so that persons other than the plaintiff may continue to read it — in other words, the plaintiff must establish in one way or another an acceptance by the defendant of a responsibility for the continued publication of that statement”.
Can a Facebook Post or Tweet be Defamatory?
Defamatory Facebook posts and Twitter tweets can constitute defamatory matter.
In Asbog Veterinary Services Pty Ltd & Anor v Barlow9, a veterinarian sued his former client for publishing defamatory posts about the practice and service provided on Facebook and Twitter. The posts claimed that the practice grossly overcharges, engages in unfair and unreasonable business practices, and takes advantage of its clients. The Court held that the posts were defamatory. The Defendant was ordered to pay $25,000 plus interest and costs.
In Mickle v Farley10, the Plaintiff was awarded damages of $105,000 including $20,000 for aggravated damages, because of several defamatory posts made on Twitter and Facebook. The Court held that it is common knowledge that defamatory publications on social media spread quickly causing the ‘grapevine effect’.
In Hockey v Fairfax Media Publications Pty Ltd11, the then Federal Treasurer, Joe Hockey, was awarded $80,000 for two tweets that had links to newspaper articles alleging he had been corrupt. The tweets contained the headlines “Treasurer for Sale” and “Treasurer Hockey for Sale”. The Court found that those tweets were defamatory of him.
In Johnston v Aldridge12, damages of $100,000 inclusive of aggravated damages were awarded to a Plaintiff in relation to two Facebook posts about a planning dispute regarding the relocation of a farmers’ market. The Plaintiff pleaded that the imputations of the posts meant that the Plaintiff was greedy, disgraceful man who had been involved in threats of rape and murder. The Court found that the posts were defamatory of the Plaintiff. Further, the Court held as follows:
“The relevant material need not necessarily impute that the plaintiff has engaged in conduct which is disgraceful or that he has conducted himself with some want of skill or efficiency in the conduct of some trade, business or professional activity, but to be defamatory the words in question must nonetheless hold the plaintiff up to contempt, scorn or ridicule or otherwise tend to make people shun or avoid him thus excluding him from society”13.
In Al Muderis-v-Duncan (No 3)14, the Court awarded damages in the amount of $480,000 including aggravated damages for defaming an orthopaedic surgeon via the internet, including the use of Facebook posts.
Can an Administrator of a Facebook Page be Liable for a Defamatory Post?
The NSW Court of Appeal in Stoltenberg v Bolton15 and Loder v Bolton16 has recently reaffirmed the ruling that administrators of public Facebook pages can be held liable as publishers of comments posted to their pages by members of the public.
The same conclusion was reached in the case of Voller v Nationwide News Pty Ltd17, although the Defendants have appealed to the High Court of Australia which is yet to determine the ultimate decision.
Conclusion
With the advancement and prevalence of social media, the likelihood of defaming another has increased significantly. Part of the reasoning behind this is that the defamers do not have instant consequences for their actions and/or words. Defamation on social media has made it particularly difficult to keep track of who or how many recipients there are which can increase or decrease the damage to a Plaintiff’s reputation. If you have been defamed on social media, the best option is to keep a record and screenshot with the date and time of publication before contacting a lawyer.
