Tweets and Facebook posts and comments capable of conveying defamatory imputations
The use of Twitter, Facebook and other social media for marketing and promotional purposes – whether it be the promotion of a new product, the dissemination of news or entertainment services, or the development of a personal or corporate brand – requires careful scrutiny to limit the risk of exposure to a claim in defamation.
Recent court decisions (which are summarised below) demonstrate that Courts will award significant damages for defamatory tweets on Twitter and defamatory posts and comments on Facebook.
Bolton v Stoltenberg [2018] NSWSC 1518
Date of Decision: 15 October 2018
Court: Supreme Court of New South Wales
Publication Media:
First Defendant
BEFORE COMMENCEMENT OF DEFAMATION PROCEEDINGS
Five (5) Facebook posts by the First Defendant on a Facebook page created by the First Defendant[1]
The First Defendant was the Administrator of the Facebook page and had authored or approved each of the defamatory publications appearing on the Facebook page.[2]
Business records of Facebook revealed the ‘reach’ of each of the posts and the number of likes and comments of each post:[3]
| Matter complained of | ‘Reach’ | No. of likes and comments |
| First matter | 661 | 83 |
| Second matter | 797 | 124 |
| Third matter | N/A | 124 |
| Fourth matter | N/A – post removed approximately 54 minutes after publication | N/A – post removed approximately 54 minutes after publication |
| Fifth matter | 1900 | 57 |
AFTER COMMENCEMENT OF DEFAMATION PROCEEDINGS
Seven (7) posts published by the First Defendant on the same Facebook page, after the Court proceedings had been commenced.[4]
Second Defendant
A ‘comment’ by the Second Defendant on one of the defamatory Facebook posts published by the First Defendant, which the Judge held was “a specific endorsement of the … matter complained of” and “an act of authorisation which attracts liability”.[5]
Categorisation of defamatory material:
The Judge stated that “each of the imputations conveyed are defamatory as they tend to lower the plaintiff’s reputation in the minds of “right thinking ordinary members of the community”.[6]
The Judge also stated that “the tone of the [defamatory publications] may properly be described as bullying and high-handed”.[7]
The publications “were effective in turning at least some parts of the community against him”, “caused great sadness to Mr Bolton and his family” and were “devastating and “soul destroying” and [the plaintiff] felt under a prolonged attack”.[8]
Damages Award
First Defendant to pay $100,000, comprising $80,000 in general damages and $20,000 in aggravated damages.[9]
Second Defendant ordered to pay $10,000 in damages.[10]
Bottrill v Bailey [2018] ACAT 45
Date of Decision: 20 April 2018
Court: ACT Civil & Administrative Tribunal
Publication Media:
Facebook post containing link to a YouTube video which was defamatory of the applicant[11]
Categorisation of defamatory material:
While the respondent was not responsible for publishing the video which was defamatory of the applicant, the Tribunal found that she was liable for publication of the defamatory material because of her failure to comply with a notice requesting the removal of the post from her Facebook page.[12]
The Tribunal stated “it is difficult to imagine more egregious defamatory imputations”.[13]
Damages Award
$18,880 including aggravated damages, interest and costs[14]
Stokes v Ragless [2017] SASC 159
Date of Decision: 10 November 2017
Court: Supreme Court of South Australia
Publication Media:
132 internet publications between 30 October 2012 and 24 June 2014, comprising 116 separate statements on a website created by the defendant, 15 emails and via a Facebook page[15]
Categorisation of defamatory material:
The imputations conveyed 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 publications”[16]
Damages Award
General damages – $70,000[17]
Aggravated damages – $20,000[18]
The Judge did not apportion damages for each publication or type of publication separately. It is therefore not clear what portion of the damages award relate to the Facebook posts
Al Muderis v Duncan (No 3) [2017] NSWSC 726
Date of Decision: 7 June 2017
Court: Supreme Court of New South Wales
Publication Media:
There were five defamatory publications about the plaintiff, which consisted of two websites, a public Facebook page, a YouTube video and publications on the “Daily Motion” and “Pinterest” websites (published between 19 February 2015 and 14 September 2016[19]).[20]
Categorisation of defamatory material:
The imputations conveyed by the publications were “extraordinarily damaging”[21]
Damages Award
Damages: $320,000, including aggravated damages, to be paid by both defendants jointly and severally for the first publication which was published by both the first and second defendant.[22]
In addition, the Second Defendant was ordered to pay a further $160,000 in damages for the remaining four defamatory publications which were published by the second defendant alone.[23]
The court also granted injunctive relief to restrain the defendants continuing to engage in the conduct complained of.[24]
The Judge did not apportion damages for each publication or type of publication separately. It is therefore not clear what portion of the damages award relate to the social media posts
Reid v Dukic [2016] ACTSC 344
Date of Decision: 25 November 2016
Court: Supreme Court of the Australian Capital Territory
Publication Media:
Nine Facebook posts on the defendant’s Facebook page during the period 13 January 2015 to 8 December 2015
The defendant’s Facebook profile was public as opposed to private and therefore the Defendant’s posts were accessible to anyone and not limited to the Defendant’s Facebook friends.[25] The defendant had about 400 Facebook friends.[26]
All posts removed on 12 February 2016.
The posts remained published online for differing time periods ranging from 66 days to 395 days.[27]
The defendant took no part in the proceedings and default judgment was entered in favour of the plaintiff.
Categorisation of defamatory material:
The material contained in the Facebook posts was baseless and was directed towards the plaintiff in her professional capacity as the Chief Executive Officer of a football organisation. The court found that the posts were a sustained repetitive attack on the plaintiff’s reputation and character that demonstrated no sign of abating in circumstances where the Plaintiff had no opportunity to comment prior to publication.[28]
Damages Award
Damages – $160,000
Aggravated damages – $20,000
Plus interest on the aggregated sum at 3% for a period of 6 months, amounting to $2,700.
Injunctive relief granted to restrain the defendant from publishing the matters complained of or any matter of similar effect.[29]
Rothe v Scott (No.4) [2016] NSWDC 160
Date of Decision: 5 August 2016
Court: District Court of New South Wales
Publication Media:
Facebook posts. Limited publication with evidence being that the defendant had about 300 Facebook friends at date of trial, and that the post that had been put on Facebook had been shared 322 times[30].
Categorisation of defamatory material:
The defamatory posts published were of an “extreme kind” and made without factual basis[31].
Damages Award
Damages- $100,000
Aggravated damages- $50,000
Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237
Date of Decision: 20 August 2015
Court: Supreme Court of New South Wales Court of Appeal
Publication Media:
Article was published in the Sydney Morning Herald newspaper and also on-line on the publisher’s website, on Sydney Morning Herald Tablet App and via Sydney Morning Herald’s twitter account.
The on-line versions was/were taken down on the same day as the publication, following information that the wrong teacher had been identified in the article. An apology was also published.
Fairfax estimated view and/or readership of the Articles complained of to be:
Newspaper printed edition: 769,000;
Sydney Morning Herald Tablet App. – 9,129 unique views;
Twitter account- 1,155.[32]
Categorisation of defamatory material:
Very serious defamation.[33]
Article conveyed 3 defamatory imputations concerning the plaintiff.[34]
Damages Award
Damages including aggravated damages – $350,000.
[Award of Trial Judge confirmed by Court of Appeal]
The Court did not apportion damages for each publication or type of publication separately. It is therefore not clear what portion of the damages award relate to the social media posts
Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652
Date of Decision: 30 June 2015
Court: Federal Court of Australia
Publication Media:
In Hockey v Fairfax Media, Federal Treasurer Joe Hockey brought three separate proceedings in defamation against the publishers of the Sydney Morning Herald, The Age and the Canberra Times in respect a number of related print and online matters published on 5 May 2014.
- A suite of articles published in the print versions of the Sydney Morning Herald, The Age and the Canberra Times;
- Online versions of the articles published on each of the newspapers’ online platforms;
- A ‘placard’ poster published by the Sydney Morning Herald to promote the articles, which included in large bold font the words “Treasurer for Sale”;
- Two tweets published by the Age on its twitter account, which comprised only the words “Treasurer for Sale” and “Treasurer Hockey for Sale” and contained hyperlinks to online versions of the articles referred to above.
At trial of the proceedings, Justice White found that only the tweets and the Sydney Morning Herald poster conveyed defamatory imputations, and that Mr Hockey’s case failed in relation to the remainder of the publications.
Categorisation of defamatory material:
“A defamatory allegation of corruption by a politician is a serious defamation”, although “not the most serious form of defamation of this kind, as allegations that Mr Hockey had taken bribes, or was prepared to take bribes, in his office as Treasurer would be even more serious.”[35]
Damages Award
Justice White awarded Mr Hockey damages in the sum of $120,000.00 in respect of the poster and $80,000.00 in respect of the two tweets.[36]
In assessing damages, Justice White took care to distinguish between the reputational loss suffered by My Hockey by reason of the publication of the articles – which were not found to be defamatory – and the loss which arose from the publication of the tweets and poster.[37]
Justice White did not find that Mr Hockey was entitled to an award of aggravated damages.
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© Stephens Lawyers and Consultants 21 November 2018
Stephens Lawyers & Consultants have a high level of expertise in the Australian Uniform Law of defamation. Our lawyers represent leading companies and organisations in defamation law matters – including litigation and mediation.
For further information contact:
Katarina Klaric
Stephens Lawyers & Consultants
Suite 205, 546 Collins Street
Melbourne VIC 3000
Phone: (03) 8636 9100
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All Correspondence to:
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Authored by Katarina Klaric and Emma Contebardo
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[1] Bolton v Stoltenberg [2018] NSWSC 1518, [6] and [68]-[111].
[2] [2018] NSWSC 1518, [31], [36], [41], [44], [46]-[47] and [49].
[3] [2018] NSWSC 1518, [37], [41], [44] and [49].
[4] [2018] NSWSC 1518, [63].
[5] [2018] NSWSC 1518, [174] and [175].
[6] [2018] NSWSC 1518, [76], [82], [90], [97], [104].
[7] [2018] NSWSC 1518, [220].
[8] [2018] NSWSC 1518, [248].
[9] [2018] NSWSC 1518, [257]-[262].
[10] [2018] NSWSC 1518, [263].
[11] Bottrill v Bailey [2018] ACAT 45, [1]-[2] & [12]-[16].
[12] [2018] ACAT 45, [104], [139]-[141].
[13] [2018] ACAT 45, [204]
[14] [2018] ACAT 45, [265].
[15] Stokes v Ragless [2017] SASC 159, [9].
[16] [2017] SASC 159, [173].
[17] [2017] SASC 159, [430].
[18] [2017] SASC 159, [431].
[19] Al Muderis v Duncan (No 3) [2017] NSWSC 726, [4].
[20] [2017] NSWSC 726, [4]-[11].
[21] [2017] NSWSC 726, [116].
[22] [2017] NSWSC 726, [121] and [127].
[23] [2017] NSWSC 726, [122] and [127].
[24] [2017] NSWSC 726, [126]-[127].
[25] Reid v Dukic [2016] ACTSC 344, [56].
[26] [2016] ACTSC 344, [8], [9].
[27] [2016] ACTSC 344, [9].
[28] [2016] ACTSC 344, [55].
[29] [2016] ACTSC 344, [70].
[30] Rothe v Scott (No 4) [2016] NSWDC 160, [79] and [80].
[31] [2016] NSWDC 160, [113].
[32] Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237, [98].
[33] [2015] NSWCA 237, [184].
[34] [2015] NSWCA 237, [104].
[35] Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652, [515].
[36] [2015] FCA 652, [517].
[37] [2015] FCA 652, [468]-[469].