Online Defamation – Be Careful of What You Post!

Over the past decade or so there has been a sharp increase in the use of social media by both individuals and businesses. Social media can be a useful promotional tool.

There are many benefits, in a commercial sense, associated with the use of social media outlets, particularly because of the ease with which you are able to create a “post” and instantaneously reach out to a large consumer base.

However, there is also a dark side to social media, particularly online defamation.  Online public forums may be used by people as a platform to post, to the public at large, nasty comments about other individuals and / or businesses.  Such posts can have the potential to cause serious reputational damage.

It is important to remember that postings on social media and online public forums are not immune to defamation law.

Broadly speaking, defamation occurs where an insinuation arises from a statement made which, in the eyes of an ordinary reasonable person, lowers the defamed person’s reputation or is likely to lead someone to think less of the defamed person.  A person who successfully establishes a defamation claim may be entitled to damages.

The Court is not shy when it comes to awarding damages for online defamation, particularly where the defamer’s conduct has caused personal distress and harm.  Additionally, a type of damages, known as “aggravated damages”, may be awarded if the Court finds that the defamer has acted in an improper or unjustifiable manner or in a manner which demonstrates a lack of good faith.  For example, in the decision of the Supreme Court of Western Australia in Douglas v McLernon [No 4] [2016] WASC 320, delivered on 21 December 2016, Justice Kenneth Martin awarded the plaintiffs $700,000 in damages (including aggravated damages), as well as costs on an indemnity basis (which is much more favourable than a standard award of costs).

The plaintiffs in that case complained of articles concerning them published by the defendant, on three different websites, which contained false imputations or innuendos injurious to the plaintiffs’ reputation.  His Honour described the defendant as, amongst other things, “dispensing liberal amounts of poison over the internet concerning each of these plaintiffs on an ongoing basis – as a person who himself has nothing to lose in a material sense financially and does not care about the consequences of his publications”.

Online posts made under pseudonyms are also not immune to the law.  In McCrae v Reynolds [2015] FCA 529, the Federal Court of Australia ordered the operator of the internet chat room “Hotcopper” to provide all documents relating to identifying the description by name and address of the person or persons placing entries under the username “zzedzz”.  Therefore, if posts are made by a person using a false username, there are means available to discover the identity of that person for the purpose of defamation proceedings.

However, a finding of defamation will not always lead to an award of damages.  There are defences available to an action for defamation.  For example, the following defences may be raised:

  • Defence of justification – that the defamatory imputations were true in substance or not materially different from the truth.
  • Defence of honest opinion – that the matter was an expression of opinion (rather than a statement of fact), that the opinion related to a matter of public interest and that it was based on proper material.

A good example, where those defences were successfully invoked by the defendant in the context of posts on Facebook, was in McEloney v Massey [2015] WADC 126.  In that case, statements were made by the defendant in a thread of posts on Facebook concerning the services of the plaintiff, an accountant.  The defendant was partially successful in raising the defence of justification.  Evidence, in the form of email correspondence, was adduced at trial, which supported some of the imputations made by the defendant, namely that the plaintiff was “rude and unprofessional, displayed poor interpersonal skills to his clients and did not provide a good service”.  The defendant was successful in raising the defence of honest opinion. Relevantly, the Court found, amongst other things, that:

  • “the manner in which an accountant who provides a regular service to the public (namely, the completion of tax returns), conducts this service is a matter of public interest”;
  • “An ordinary and reasonable reader on the [Facebook page] would also not have had any difficulty in working out that this was a site where people were offering their opinions about the good and bad aspects of goods, facilities and services to be found in Perth…and that posts on this site were likely to involve a large measure of personal opinion and accounts of personal experiences, views and suggestions.”; and
  • the defendant was expressing opinions that she held, which were based on the defendant’s dealings with the plaintiff and were substantiated by the facts that the defendant had provided in the thread of posts by her.

If you are concerned about online defamation and want to know your rights, please contact us.