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Do you post on social media? Make sure your opinion isn’t defamatory

Emily Shoemark

18 Mar 2019

Topics

  • Business Law
  • Employment Law

We’re all entitled to an opinion, but should we publish our opinions on social media? In this article, Emily Shoemark and Paris Miller investigate the expensive consequences of Facebook defamation.

The age of social media

The age of social media is upon us. It’s simple and accessible, making it easy for people to connect with family, friends and community, locally and globally. The material we post has the potential to reach all around the world. Increasingly, we’re seeing social media networks used to disseminate information to generate change, or to draw attention to social issues.

Social media ‘groups’ – such as local community pages – are a popular way for people to engage with their fellow residents and keep up to date with local matters. And they can do this from the comfort of their home or handheld device. These groups are often poorly moderated, with unrestricted membership and an open forum for sharing of content and opinions.

Posting from a private location can give us the illusion of privacy. However, public posts are far from a quiet conversation among friends. The ambiguity around who should regulate social media material supports the incorrect perception that what’s posted online will have no real-world consequences. This is especially so in ‘local pages’, where the viewing audience is narrower and the likelihood of personal contact with other members is high.

This combination of smaller, targeted social media communities and the freedom to post individual opinion online allows small-town gossip to become a very public broadcast.

The Facebook post

Whether a Facebook post was defamation or just opinion was the focus of a recent Victorian Supreme Court case. In this case, an individual posted their opinion on a community page. They were seeking contact with other people who shared similar views about a well-known community member who owned a number of chain businesses in the area.

The person who made the post didn’t name the other person and tried to thinly veil their identity. However, the description they used and the small number of people within the community, made the business person clearly identifiable.

Implicit in the post was an insinuation that this person was a bad employer and that they financially and physically abused staff. The knock-on effect of this post meant that, within 24 hours of the original content appearing on the community page, nine related posts had appeared, alleging bullying, harassment and mental instability. These posts were visible to the over 9,500 members of the online Facebook group, who were part of the physical community in which the person of interest was well known. The posts could have also been seen to an unknown number of people who’d had the post shown to them.

The case

The person of interest brought a lawsuit against the original poster, bringing a suit for defamation and damages. They claimed that the post left them vulnerable to, and defenceless against, defaming allegations of bullying, harassment, physical abuse of staff, wage-theft, and mental instability. They also claimed that the post painted them as a greedy, money-hungry person.

The plaintiff claimed that the public, far-reaching exposure of the posts caused her considerable emotional distress. This distress forced her to withdraw from social and community life, and seek regular psychological help. Only one person controlled the narrative – the original poster – the person who was being accused of serious wrongs had no right of reply. Most importantly, the discussion of the character of the plaintiff was in a public, open forum.

The decision

The Court found that the Facebook post qualified as defamation. The statement was:

  • ‘published and communicated’ on social media
  • posted in such a way and in such a location as to easily identify the plaintiff
  • clearly caused injury and loss to the plaintiff’s mental health and reputation in the larger community.

Judicial Registrar Julie Clayton agreed with the claims of the plaintiff. She ordered the person who originally made the social media post to pay $200,000 in damages to the plaintiff.

How we can help

If you feel strongly about a perceived injustice in your community, it’s important to consider the most appropriate way of dealing with the issue. Leading a smear-campaign against a member of the community can be a costly and harmful exercise.

If you feel like you have been treated improperly by your employer, our experienced Business Law and Employment Law teams can advise you on the best solution for your needs. Please contact us on 02 6285 8000 or by email.