Online defamation in the digital age – a cautionary tale
The widespread use of social media has significantly redefined modes of communication. In this ‘digital age’, characterised by platforms such as Facebook, Instagram, Snapchat and Twitter, it is possible for the average person to reach many more people than was previously possible. One downside of this is that social media has increased the incidence of cyber-bullying, name-calling and potential defamation. It is critical that before publishing anything on social media, you consider the factors that are outlined in this article.
What is Defamation?
Defamation refers to the publication of material that harms the reputation of an individual. In Victoria, there is no distinction between defamation in writing or in speech, and so defamation includes, but is not limited to:
- Print media;
- Online media;
- Speech;
- Writing;
- Drawing/cartoons; and
- Novels/poems.
Elements of a Defamation Claim
In Victoria, all the following elements must be satisfied for a successful claim of defamation:
- Communication or publication;
- Of a matter that is defamatory;
- To any third party; that
- Identifies a person.
A person who wishes to bring a claim for defamation for damage to their reputation and feelings must do so within one year of publication.
Defences to Defamation
There are a number of ‘lawful excuses’ or defences, that a publisher can rely on to try and relieve themselves of a defamation claim, including:
- Justification: The published material is substantially true and therefore not defamatory.
- Qualified Privilege: The publication was necessary for a legal, social or moral reason.
- Honest Opinion: The published material was a statement of honest opinion, rather than of fact.
- Fair Report: The published material was posted in the proceedings of reporting a matter of public concern.
- Triviality: The published material is unlikely to impute any harm to the plaintiff’s reputation.
A Recent Case
The issue of defamation came up in the Queensland case of Kelly v Levick, in which a successful claim was advanced.
The Facts
June Marion Kelly sought $150,000 in damages after her former husband David Levick published a post on Facebook alleging that she had committed criminal offences and suffered from a mental disorder. Mr Levick posted to his Facebook page:
“June turned out to be a thieving, lying, money crazed bitch who screwed me out of nearly 3 million Rand – may she rot in Hell.“
Mr Levick raised several defences to Ms Kelly’s claim, including:
The post was supposed to be shared with a private, select group of people, and he accidentally posted it publicly;
The post was ambiguous as to whether it actually implied what Ms Kelly said it did, and whether it was directed at her in the first place; and
Given that Mr Levick posted the statements in South Africa, there was no evidence to show that it was “downloaded” in Queensland.
Although this post was written in the context of a bitter divorce and property settlement dispute in South Africa, the Court did not include this in its considerations.
Findings of the Court
The court found in favour of Ms Kelly.
With regard to Mr Levick’s defence that he published the post inadvertently, the Magistrate held that this is irrelevant, and said “… liability depends upon mere communication of the defamatory matter to a third person. The communication may be quite unintentional…”. [1]
Furthermore, it was clear that there had been communication of the material to third parties given that this post was public. It was also evident that the post was directed at Ms Kelly, as Mr Levick posted an apology on her Facebook page some days later.
Damages
In considering what damages to award to Ms Kelly, the Magistrate stated that “Damages should reflect the circumstances past and present as well as what is required to vindicate the Plaintiff’s reputation in the future.” [2] Ms Kelly was awarded damages of $10,000 plus interest.
Key Takeaways
- Before you publish a status or post on social media, consider whether it might impact someone’s reputation or feelings. This is particularly important given the ability of social media posts to reach numerous persons and be re-shared, screenshot, etc.
If you have questions about defamation on social media, you can contact us on (03) 9600 0162 or email us at info@lordlaw.com.au or fill out the form on this page.
References in this article
[1] Lee v Wilson & McKinnon [1934] HCA 60, at page 288
[2] Kelly v Levick [2016] QMC 11, at paragraph 67
