Australia: Things to consider before clicking, sharing or posting online and on social media

Last Updated: 28 October 2016
Article by Cassie O'Bryan

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 post online.

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 retweet.
  • Be careful of being dragged into a comment or twitter war with other users as the posts may start off innocently but can become defamatory.
  • A single seemingly innocent tweet may be considered defamatory.
  • What you may think is a joke, may ultimately be found to be defamatory.
  • Social media should not be used as an avenue to vent anger, frustration or personal grievances.

Background

On 7 October 2016, in the matter of Douglas v McLernon [No 4] [2016] 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 [2015] WADC 126); and Facebook postings (Rothe v Scott (No 4) [2016] 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 you.
  • People posting reviews should be especially careful. This is illustrated in the recent case of Piscioneri v Brisciani [2015] 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 publication occurred.

Conclusion

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 alliances.

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