Cady: And they have this book, this “Burn Book” where they write mean things about girls in our grade.
Janis: Well what does it say about me?
Cady: You’re not in it.
Janis: Those bitches.Mean Girls 2004
Before social media, we ranted to ourselves or to our families and friends about things that upset us. Today, we post it on social media. Problem with customer service? Post it on the company’s Facebook business page. Upset about a contestant’s behavior on a reality television show? Post it on Facebook. Very upset about someone or something? Create a Facebook Hate page.
I discussed defamation via Twitter in my last post, this article will focus on defamation via Facebook. I encourage you to read the cases, they are really interesting – I’ve used the legal citations so you can look them up. Search them.
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Defamation
The law of defamation protects a person’s reputation in the community, in the sense of their right not to be denigrated eyes of others. This involves in a sense, the restriction of another common law principle – freedom of speech. The High Court of Australia said about this balancing act:
The public interest in free speech goes beyond public benefit that may be associated with a particular communication…[everyone] has an undoubted right to lay what sentiments he pleases before the public…but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity. Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [31]-[32].
Facebook was launched in 2004 and its impact on society is growing with it.
It’s currently the largest online social media network. It currently has 1,310,000,000 active users, who share 1,000,000 links every twenty minutes [Link]. Social media has an informal and unreserved style, allowing rapid and spontaneous exchanges. And users are often unconcerned, uninformed or reckless when it comes to the legal risks of what they post online.
Legal Action
Facebook posts have given rise to defamation proceedings in Australia. In the matters discussed, the usual elements of defamation – publication, identification and defamatory matter – were considered. They all involve ordinary people.
Burtenshaw and Knueppel (2012)
Ms Burtenshaw was a school principal in a small community. Ms Knueppel was a parent of a student at that school. In December 2012, in the South Australian Magistrates court, Magistrate Morris was satisfied a Facebook hate page defamed the Ms Burtenshaw and awarded her $40,000 in damages. The Magistrate said:
I am satisfied that prior to the publication of the defamatory material the plaintiff had a sound personal reputation…[and] that the imputations of the subject defamatory postings are untrue. The fact that Ms Knueppel used the publication via a Facebook format and the ease of access and republication should be taken into account as a factor that aggravates the award of compensatory damages.
Polias v Ryall [2013] NSWSC 1267 is a matter which is, at the time of publication, still before the Court. It involves various messages on Facebook profiles between (former) friends. So far, the presiding judge has found some of the defamatory imputations complained of are “abusive words incapable of conveying any defamatory meaning; meaningless abuse; or vulgar abuse not damaging the plaintiff’s reputation”. Interestingly enough, these proceedings have generated some media interest because of the subject matter. A point to bear in mind is the publicity generated by defamation actions, ironically get the message out further.
Mickle v Farley [2013] NSWDC 295 involves a social media double whammy. The defamatory postings were made to Twitter as well as Facebook. The posts were brought to the attention of Ms Mickle by the school principal, who spent time each week to dealing with Facebook issues that arose in relation to students. Mr Farley was a former student of the school, but not of Ms Mickle. His father had been replaced by Ms Mickle when he went on sick leave. Mr Farley was ordered to pay $105,000 in damages. The trial judge found in favour of Ms Mickle, a high school music teacher:
When defamatory publications are made on social media it is common knowledge that they spread. They are spread easily by the simple manipulation of mobile phones and computers. Their evil lies in the grapevine effect that stems from the use of this type of communication.
Opening a fictitious profile to be a “mean girl”
Don’t think that if you have a fictitious profile, it’s open slather to spread hate. Courts have ordered social media platforms to disclose the identities of anonymous social media users through applications for preliminary discovery. In Western Australia, the Supreme Court ordered the disclosure of information relating to posters’ identities in relation to defamatory statements/postings on forums [Resolute Limited and Anor v Warnes [2000] WASC 35 and HotCopper Australia [2010] WASC]. In Britain, the High Court granted an order requiring Facebook to disclose information including the IP addresses of the creators of an offending Facebook page [Applause Store Productions v Raphael [2008] EWHC 1781 (QB)].
How can you protect yourself for being sued for defamation?
- Think before you post!
- Anonymous or fake profiles are no protection.
- Think before you post!
- Ordinary people can be sued for defamation.
- Think before you post!
Social media has transformed modern communication. It allows people to share interesting as well as mundane stories, engage with businesses, market their own expertise and connect with peers. But when you use social media, temper your behavior online and don’t be impulsive.
Yolanda Floro is Leaders in Heels’ Social Media Editor. This is an edited and modified extract from a recent paper she wrote on Defamation and Social Media as part of her Masters in Law, Media and Journalism studies.
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