In brief: A recent and costly WA defamation
decision involving a "self-appointed Internet crusader"
is a timely reminder to be careful what you click on and what you
What you need to know:
Irresponsible social media and online activity can have legal
and financial consequences.
Be highly selective of what you choose to share, re-post or
Be careful of being dragged into a comment or twitter war with
other users as the posts may start off innocently but can become
A single seemingly innocent tweet may be considered
What you may think is a joke, may ultimately be found to be
Social media should not be used as an avenue to vent anger,
frustration or personal grievances.
On 7 October 2016, in the matter of Douglas v McLernon [No 4]
 WASC 320, the Western Australian Supreme Court awarded a
record total of $700,000 plus interest and costs against Terrence
John McLernon, whom Justice Kenneth Martin described as a
"self-appointed Internet crusader". This decision serves
as a reminder to all Internet users to be careful about what they
share online and on social media.
In this case, Mr Terrence McLernon published allegations on his
website claiming that each of the three businessman were corrupt,
were the subject of ASIC investigations and had bribed ASIC
officials, had assaulted women and children, and were involved in
organised crime, to name but a few.
In his judgment, Justice Martin was at pains to remind users
that "there is a lingering misapprehension that anything at
all can be posted concerning another person over the Internet, no
matter how defamatory or scandalous, and that the posted material
will enjoy a complete immunity".
In the 93-page judgment, Justice Martin reaffirmed the principle
that "any person who knowingly participates in the
communication of defamatory material, in whatever degree, is a
publisher and is therefore exposed to potential liability under the
tort of defamation."
Key points to consider when engaging in online activity:
Tweets (Hockey v Fairfax Media Publications Pty Ltd (2015) 237
FCR 32); opinions (McEloney v Massey  WADC 126); and Facebook
postings (Rothe v Scott (No 4)  NSWDC 160) must be carefully
considered before posting or even re-posting.
Any person who re-posts or retweets a defamatory publication
will be jointly and severally liable with the original publisher.
As such, even though you may not be the author of the original
post, the minute you share it you may open yourself up for a claim
for damages. This is especially relevant if it becomes clear to the
Plaintiff that you may be able to pay any damages awarded against
People posting reviews should be especially careful. This is
illustrated in the recent case of Piscioneri v Brisciani
 ACTSC 106, where the Court held that defamatory statements
made as part of a thread of posts on a website should
not be read in isolation but together with other
posts made on that topic. As such, all comments by a particular
user have to be considered as one thread of posts and each should
notbe read in isolation. This is especially relevant as a post or
review may start off as non-defamatory, but may later become
defamatory after engaging with other users, especially those who
comment on your post.
There are limited defences to a claim for defamation. All
defences must be proven by the Defendant, and some defences may not
be available to the Defendant depending on when and where the
Douglas's case serves as a further reminder to be careful
what you post online, including what you like, share, or review on
social media. The record award of damages in this case shows that
Courts are keen to make an example of keyboard warriors.
Madgwicks has successfully brought claims against parties
posting on the Internet alleging everything from tax fraud to
breaches of the Consumer Law, corruption, misuse of position and
even involvement in criminal activity. The firm's success in
these cases was largely due to the fact that the Defendants were
unable to make out a defence to the claim. If you believe you are
the victim of online defamation, contact Madgwicks for specialist
advice surrounding your specific circumstances.
When people share posts and comment online, they are generally
unaware that there could be serious and costly consequences if they
are found to have defamed someone. If you are in any doubt about
your online activity, do not post or share as doing so may cost you
hundreds of thousands of dollars.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.Madgwicks is a member
of Meritas, one of the world's largest law firm
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These cases provide some guidance as to how the courts have approached the assessment of damages in nervous shock claims.
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