Going viral: social media defamation cases on the rise

Defamation actions involving social media platforms are on the rise.  Our experience is that defamation claims and grievances in this space is on the increase.

Australian courts are demonstrating an increasing willingness to award significant damages to successful plaintiffs defamed online and in social media situations.

In 2016, the New South Wales District Court held that a Facebook post was defamatory because it raised suspicions of a paedophile in the community.1  Whilst the defendant’s post did not specifically name the plaintiff, the Court found that the plaintiff could be identified by reason of certain extrinsic facts.  The plaintiff was awarded $150,000 in damages.  In giving judgment, Justice Gibson issued a strong caution about the use of social media:

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…

The anonymity instantaneous and wide-ranging reach of the Internet and social media make it a dangerous tool in the hands of person who see themselves as caped crusaders or whistleblowers, or alternatively want to ‘troll’ other members of the community for the purpose of gratifying their own wishes or fears or for the purpose of gaining attention”2

That was not the first time that social media users have been admonished by the courts.  In 2013 New South Wales District Court Judge Elkaim issued a warning to social media users about the frequency and speed at which defamatory content is spread over the internet:

…When defamatory publications are made on social media it is common knowledge that they spread. They 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.3

In that case, the defendant was ordered to pay a total of $105,000 (comprising $85,000 in general damages and a further $20,000 in aggravated damages) after posting defamatory comments concerning the plaintiff on Facebook and Twitter.  The aggrieved plaintiff was a teacher at the defendant’s former high school.

In Reid v Dukic the Supreme Court of the Australian Capital Territory awarded the plaintiff (a former CEO at Capital Football Pty Ltd) a total of $180,000 (comprising $160,000 in general damages and $20,000 in aggravated damages) in respect of nine defamatory posts uploaded to Facebook.4  The posts complained of gave rise to imputations that the plaintiff was (amongst other things) dishonest, racist and had generally performed her role as CEO with gross incompetence.

Closer to home, Justice Kenneth Martin in the Supreme Court of Western Australia opened up his lengthy judgment in an internet defamation case  with these comments:

There still manifests a perception in some members of the community that the laws of defamation do not apply to publications made over the internet. Consequently, there is a lingering misapprehension that anything at all can be posted concerning another person over the internet no matter how defamatory or scandalous the uploaded material may be and that the posted material will enjoy a complete immunity. That perception is wrong...

The three successful plaintiffs in this case5 were awarded a total of $700,000 in damages (with each of the three awards including an aggravated damages component) in respect of a series of defamatory posts which had been uploaded onto different internet websites.

Lavan comment

The ‘grapevine’ effect referred to by his Honour Judge Elkaim is an often used metaphor deployed by courts in the assessment of damages for defamation.  In defamation by social media, the potential for ongoing damage is being exacerbated by the ease with which users of social media can republish the defamatory material to others by a simple click of a mouse, by word of mouth or by inviting others to view the material online by sending links to it. The wider republication of the offensive and/or defamatory material via the so-called ‘grapevine’ effect should not be underestimated.

Defamation by social media continues to be a fertile area for litigants, and is receiving significant attention by the courts.  With continuing advancements in social media and ever growing accessibility to the internet, there is an increased risk of significant awards of damages for defamation caused by electronic and online publications that are now accessible to undefined and unlimited audiences due to the ‘grapevine’ effect.