Civil Law News & Current Affairs
Running your mouth on social media could run your wallet dry
When we think about the law of defamation, we often think of celebrities and other high-flyers taking on large media corporations for defamatory stories and articles made in print and television media. These proceedings often receive huge media attention and when the plaintiff is successful they often result in an extensive award of damages. Most of you will have heard about the Rebel Wilson defamation matter when she was awarded over $4.5 million dollars in damages in 2017 for defamatory articles published by Bauer Media Pty Ltd, which was later reduced to $600,000.00 on appeal.
You have probably also heard about the Geoffrey Rush matter which is going on as we speak.
Thinking about defamation matters only involving big names and big companies means we often overlook that what we choose to post on social media can be the subject of defamation proceedings. A number of recent decisions demonstrate that defamation laws extend to statements made by individuals on social media and can also result in a significant award of damages. They should give us pause for thought about what we all post, particularly in the heat of the moment.
Broadly speaking, defamation consists of a communication to a third party, that concerns a person (the Plaintiff) and that expressly or impliedly contains a defamatory meaning. This communication can be made in a wide variety of ways, including spoken words, written words, printed images, electronic images or internet publications. Generally, a communication will be considered defamatory if it has the effect of damaging the reputation of the Plaintiff.
Logically, in line with a steady increase in the use of technology, there has been an increase in the number of reported cases on social media defamation, all of which illustrate that there are significant consequences for posting statements online that contain defamatory imputations.
Some interesting examples of some of the recent cases are provided below.
Reid v Dukic  ACTSC 344
This case concerned nine posts on the Defendant’s Facebook account regarding the Plaintiff, who was the Chief Executive Officer of a local football club. The statements made by the Defendant were made on his personal Facebook but were accessible by anyone due to the Defendant’s privacy settings. The statements asserted, among other things, that the Plaintiff was fraudulent, dishonest, negligent and incompetent in her capacity as CEO.
The Defendant’s posts had remained on his Facebook page for varying lengths of time, up to 395 days. It was held that the posts were a “sustained, repetitive attack on the Plaintiff’s reputation and character.” In addition, it was held that the Defendant’s conduct was improper, unjustifiable and lacking in good faith.
The Plaintiff was awarded damages in the amount of $160,000.00, aggravated damages in the amount of $20,000.00 and interest. The Court also made orders restraining the Defendant from publishing the matters complained of, or any other similar matters online.
Piscioneri v Brisciani  ACTSC 106
In this case, the Defendant was the director of a website which facilitated discussion about the conduct of the Plaintiff, who was a legal practitioner. There were several posts about the Plaintiff on the website, criticising her conduct during the course of a criminal trial. The posts were made in 2005 and 2010 and had remained online for a significant period of time.
Even though the defamatory statements about the Plaintiff had only been viewed by a relatively small number of people, it was held that the posts had the capability of conveying serious defamatory imputations about the Plaintiff and had detrimentally impacted the Plaintiffs wellbeing. The Plaintiff was awarded general and aggravated damages totalling $82,000.00.
Al Muderis v Duncan (No 3)  NSWSC 726
This case concerned several publications made by the Defendant in relation to the Plaintiff, who was a surgeon. The Defendant, among other things, created a website about the Plaintiff alleging professional negligence, made defamatory statements about the Plaintiff on Facebook and published a video on YouTube about the Plaintiff under the heading “Dr Al Muderis the Butcher”.
It was held that the imputations in the defamatory statements were “extraordinarily damaging” to the Plaintiff’s reputation. The Plaintiff was awarded general and aggravated damages totalling $320,000.00.
Each of these decisions serve as a reminder that defamation proceedings are not just confined to celebrities and media corporations. What we choose to post on social media can have significant legal consequences. When making statements online, care needs to be taken to ensure that the statement has a factual basis and does not contain defamatory imputations.
At Aulich we have a burgeoning defamation practice and we regularly work with preeminent senior and junior counsel in this area. If you have any questions about any of the issues raised in this blog, please get in contact with us.