Publishers forced to check uncertain facts and seek legal advice

As an Australian publisher and editor of a community newspaper since pre-internet times, like most other publishers, I have an increasing appreciation of the need for discretion when deciding what is printed.

Many of my publisher colleagues have been and some still are proud advocates of free speech, fair reporting and honest opinion. However, the risk of having a potentially aggrieved party threatening legal action often places an onerous burden on a publisher to check and substantiate alleged uncertain facts, and when unsure, to obtain expert legal advice.

Ease and speed of communication of defamatory comments online

Over the last 20 years or so, we have adapted to the revolutionary growth and impact of the internet on communications. Social networking and online business have become perhaps the most frequent of online activities.

With hundreds of sites catering for social media user demand, users of platforms like Facebook, Twitter or Instagram, and review sites like Yelp, TripAdvisor, Amazon and Google Reviews are well advised to exercise caution and care in what they post or re-post.

The ease and speed with which an offending defamatory comment can be communicated online has contributed to a marked increase in the number of defamation cases.

Re-posting or re-tweeting a defamatory publication

The sharing of offensive material on Facebook, and the reposting or commenting on other peoples' postings can have serious and sometimes unexpected consequences.

A person who re-posts or re-tweets a defamatory publication potentially could be jointly and severally liable with the original publisher.

Re-publication of offensive and damaging material by others may result in either or both the original publisher and the re-publisher facing a potential claim in defamation.

The writer of an email may also be sued if the defamatory material contained in the email gets distributed or re-posted on the internet, notwithstanding that the writer of the email didn't know or did not give permission for its distribution.

Need for modernization and national approach to defamation laws

Defamation laws, which in NSW are governed by the Defamation Act 2005, came into force while social media was still in its infancy.

The need for modernisation and a national approach to reform of defamation laws, to reflect the rise in digital communications and online publications, resulted in an 18-month review through public consultation, conducted in NSW by the Defamation Working Party, driven by the Department of Communities and Justice.

It was recommended that each Australian state jurisdiction should introduce Model Defamation Amendment Provisions in its respective parliament. On 27 July 2020 the first round of proposed amendments were agreed to by the Council of Attorneys-General. Later in 2020 a stage two discussion paper is expected to be released for public consultation.

NSW passes significant reforms to defamation laws

On 6 August 2020, NSW parliament was the first to pass a number of significant reforms to existing defamation laws. The reforms are expected to commence soon after assent. Other states are expected to follow suit.

According to NSW Attorney General Mark Speakman, "the reforms represent a generational change in the way Australia's legal system will protect reputations from serious harm while encouraging responsible free speech."

Serious harm threshold, cap on damages and public interest defence

The defamation law reforms, some of which are modelled on British law, will establish the following.

  • A serious harm threshold, to keep minor "backyard" claims out of court. Individuals are to prove that the alleged defamatory matter has caused, or is likely to cause, serious harm to their reputation. Corporations are to prove "serious financial loss".
  • A mandatory requirement for a plaintiff to issue a concerns notice, before going to court, to encourage resolution before litigation.
  • A single publication rule starting limitation periods from the first upload, rather than the last click on a story.
  • Clarification on the cap on damages for non-economic loss as a real cap, which is currently $421,000.
  • A defence for peer reviewed matters in scientific and academic journals.
  • A public interest defence which will improve protection for journalists and media outlets where a publication concerns a "matter of public interest".

Scope of recent social media defamation cases

As a lawyer now practising in defamation law, I have compiled an overview of several cases, illustrating the scope of defamation matters involving social media and the internet.

I hope it will sound a note of caution to any active user of social media.

Vet sues former client for online comments on Facebook, Twitter and TrueLocal

A Queensland vet was awarded damages against a former client, Ms Barlow, after the client posted comments and reviews on social media.

The vet treated Ms Barlow's pet beagle after it was injured by other dogs and issued a bill for $427 for services provided. The treatment included sedation, pain relief, cleaning and suturing wounds and dispensing of post-operative antibiotics.

Ms Barlow disputed the charges and the matter escalated, with her posting online comments on Facebook, Twitter and TrueLocal. One of her seven posts said:

Disgusting! This was my regular vet until my dog was attacked and I was grossly over-charged there. They truly took advantage of a distressed pet owner, charging me 400% mark-up on antibiotics and a range of other pharmaceuticals. I paid the bill, but when I (nicely) queried it a few days later, they issued me with a letter saying that my dog was not welcome there if he ever needed emergency treatment. And yes, the vet is a very grumpy who should not be dealing with people or animals.

Vet's lawyers send concerns notice and ask for damages payment

The vet's lawyers sent Ms Barlow a concerns notice, stating that her posts were considered to be defamatory, making an open offer for a written apology, an undertaking not to make any further statement and the payment of compensation in an amount of $6,300; being $2,200 for legal fees and $4,100 for damages.

Ms Barlow admitted to publishing the posts, but denied that any of the imputations were defamatory. She relied upon the defences of truth and honest opinion.

Ms Barlow offered to delete the posts from True Local and Twitter, to refrain from any further public critique and to provide a personal letter of apology. She offered a payment of $500 as a gesture of good faith.

Social media posts found to contain defamatory imputations

When Ms Barlow made the post on her Facebook page, it ended up in the newsfeed of her Facebook friends. It was found Ms Barlow had about 370 Facebook friends and that the publications were shared at least 473 times on Facebook.

The matter went to court: Asbog Veterinary Services Pty Ltd & Anor v Barlow [2020] QDC 112. The District Court decided that Ms Barlow's postings did contain defamatory imputations. The vet was awarded damages in the sum of $25,000 plus interest and costs.

Teacher sues former student for social media defamation on Facebook and Twitter

In one of the first substantial social media defamation cases in Australia: Mickle v Farley [2013] NSWDC 295, Judge Elkaim explained:

...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.

A music and arts department teacher at Orange High School, Christine Mickle, was awarded a total of $105,000. Andrew Farley was a former student of the school. He had not been taught by Ms Mickle, although Mr Farley's father was a teacher of the same department.

Ms Mickle became acting head of the music and arts department when Mr Farley's father took extensive sick leave. Ms Mickle's contribution and devotion to the school was significant and eventually one of the school's buildings was named after her.

Mr Farley was unhappy with the school's decision to honour Ms Mickle, and he posted numerous abusive posts on Facebook and Twitter about her.

Mr Farley had 63 followers on Twitter, including local businesses, media outlets and students. After he was warned, he posted the following: "Like I said I can post whatever the fuck I like and if you don't like it block me so you don't have to read it. I don't give a shit... if anyone gets hurt over what I have to say about her."

Teacher awarded aggravated damages following insincere apology

Ms Mickle sought an apology and removal of the posts. Mr Farley purported to apologise. He closed his Twitter account, but opened another account under a fictitious name.

After hearing evidence from the plaintiff and three others, the court found Ms Mickle was defamed by Mr Farley. It awarded her compensatory damages of $85,000. In addition, the court awarded aggravated damages of $20,000, because Mr Farley filed a defence asserting truth, and because his "apology" was deemed to be insincere.

Negative online review causes irreparable damage to lawyer's reputation

In Cheng v Lok [2020] SASC 14, South Australian lawyer Gordon Cheng was awarded $750,000 in damages after a woman posted negative reviews about him on Google's MyBusiness website.

In her review, Ms Lok wrote: "Stay clear of this place! Gordon [Cheng] brings shame to all lawyers and is infamous for his lack of professionalism amongst the law society in Adelaide. He is only concerned about how to get most of your money."

Mr Cheng complained, arguing that the review caused him to lose around 80% of his clients and irreparably damaged his reputation and his business.

The review had received around 800 views a month and was found to have no basis in truth, considering Mr Cheng had never met Ms Lok.

Negative online review causes distress, anxiety and economic harm

Mr Cheng issued a concerns notice to Ms Lok and made a complaint to Google. The review was eventually removed, but after it was removed, Ms Lok posted additional reviews using different fake names. Ms Lok changed her account name to "Bel", then to "Cindy" and finally "Peter".

The court agreed with Mr Cheng's claim that he had suffered significant distress and anxiety and that the reviews had caused him economic harm.

The court said Ms Lok's reviews were intended to destroy the lawyer's livelihood and cause financial hardship. Mr Cheng won a $750,000 defamation payout against Ms Lok.

Dentist believes negative reviews written by competitor or former employee

Anonymous Google reviews about a dental practice, and issues concerning anonymity were the subject of a recent federal court case. The negative reviews included claims that the dental procedure the reviewer experienced was an extremely awkward experience, it was uncomfortable, and a waste of time.

The dentist, Dr Matthew Kabbabe, believed that the posts may have been posted by a competitor or a former employee of his practice.

However, because the posts were anonymous, Dr Kabbabe could not bring an action in defamation against the writer of the comments unless the person's identity was revealed.

Google can be compelled to reveal identity of anonymous reviewers

The Federal Court of Australia decision in Kabbabe v Google LLC [2020] FCA 126, relied on a Hague Service Convention, and will now allow Dr Matthew Kabbabe, who is located in Australia, to serve originating process for discovery on Google in the USA to identify the person allegedly responsible.

Google can now be compelled to reveal the user information and identity of the online reviewer. This will enable the dentist to proceed with defamation action against that person for damaging and malicious reviews.

This important decision establishes that persons who post allegedly defamatory reviews on Google using a pseudonym, can be pursued and found liable.

Posting YouTube link on Facebook found to be publishing defamatory material

The Supreme Court of ACT has found that that a woman had actively participated in the publication of defamatory material by placing a functioning hyperlink to a defamatory YouTube video on her personal Facebook page.

The defamatory material had two components: a video and accompanying text, referring to Mr David Bottrill as a life member of a religious cult organisation, OTO.

The hyperlink directed persons who clicked on the link to material depicting a notorious satanic sex cult group which tortures and sacrifices child victims.

Ms Bailey claimed she was not the "publisher" of the defamatory YouTube page. She argued that her role was "passive" in sharing the link itself.

The hyperlink and the accompanying text on the Facebook page were not surrounded by any other commentary about the topic, authored by Ms Bailey.

But the court found she was both a primary and secondary participant in the publication and her action was a positive act of participation in publication. The text that accompanied the hyperlink identified Mr Bottrill as a "confessed life member" of the OTO.

According to the decision in Bailey v Bottrill (No 2) [2019] ACTSC 167, that was a sufficient snippet or context to entice a searcher to click on the hyperlink if he or she wanted more information about Mr Bottrill. Ms Bailey was ordered to apologise and pay $18,880.

Man pursues legal action against Google for associating his picture with criminals

After a lengthy saga of trials, the High Court of Australia allowed an aggrieved plaintiff to pursue an action against Google in defamation for publishing search results that implied he is a criminal and that he is "such a significant figure in the Melbourne criminal underworld that events involving him are recorded on a website that chronicles crime in the Melbourne criminal underworld".

Google searches of Mr Milorad Trkulja showed his image mixed with images of convicted criminals, which Mr Tkkulja claimed is offensive and defamatory of him. Google claimed there were no prospects for success for a defamation claim and it successfully appealed a Supreme Court decision in the Court of Appeal.

But the High Court found otherwise. Its decision in Trkulja v Google LLC (2018) 356 ALR 178, concluded that it could be reasonably inferred from the internet searches that an unknown person like Mr Trkulja, might be connected with criminality or the underworld.

The High Court set aside summary dismissal of claims for defamation arising out of the publication by the defendant of what was referred to as "snippets". (For more information please see Australian man suing Google for defamation over search results linking him to criminals.)

The decision has been the subject of considerable controversy and academic debate. The law in relation to liability in defamation for publication by internet service and search engine providers like Google, will no doubt be further tested and clarified in the not-so-distant future.

Mark Shumsky
Defamation law
Stacks Collins Thompson

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.