Defamation and Social Media: Beware of a False Sense of Security

Thursday 3 September 2015 @ 11.16 a.m. | IP & Media | Judiciary, Legal Profession & Procedure | Legal Research

A recent trend in legal development is the rise of defamation cases involving social media as the world and, in particular, the legal world, starts to discover that sites like Twitter, Instagram and Facebook have turned anyone with a mobile phone or any other internet connected device into potential publishers. An example of this trend is the case of Mohareb v Palmer [2015] NSWDC 134 (5 March 2015) where a Sydney couple were left with a $15,000 legal bill after their comments about their neighbour made on a Facebook community page had them facing a defamation action in the NSW District Court.

The Mohareb Case

The key facts in the case are that in July 2014, the Palmer's shared a series of pictures of their neighbour Mr Mohareb, a local resident of Scotland Island in Pittwater near Sydney and described him as “ . . . [a] highly volatile individual . . . often abusive and threatening, particularly towards women and children, . . .” Mr Mohareb accused the couple of sharing his pictures on Facebook and commenting in a negative way about him, saying that those posting had claimed that ". . . he has a fake personality and presented him as an unstable and violent person".

The case went back and forth to the court several times with the Palmers initially refusing to apologise and denying the allegation of spreading the pictures around Scotland Island. The Palmers argued that they shared the pictures on Facebook but that they did not spread anything across Scotland Island. The case was settled by both parties reaching a negotiated settlement which included a legal bill of $15,000 for the Palmers and the dropping of the case in return for the publication of a formal apology.

Following are some of the precautions that may flow for online posters coming from cases such as Mohareb.

False Sense of Security

The Mohareb matter illustrates a key problem with what people say on social media; namely, a false sense of security that arises because there appears to be a misguided view that online defamation is viewed less seriously than in other contexts. News.com reports Roger Blow, principal at Cove Legal commenting on this point as follows:

“Individuals often think online defamation is seen as less important in the legal context because of the feelings of disconnect derived from using social media, . . . People are less concerned with hurting the feelings of someone they will likely never meet.”

Does it Pass a Pub Test?

Worth considering is the basic notion that there is a simple test for considering whether you can safely post something and that is, as Roger Blow states:

"Anyone posting online should first think about whether it was something they would be happy to shout out in the pub."

Thus if you were shouting the contents of your post out aloud to a room full of strangers, how would they react? Would they consider what you were saying to be aggressive, racist, sexist or even abusive.

Also the other aspect of the "Pub Test" to consider is the duration or reach of the statement - something shouted to a crowded room only exists briefly and reaches a small group, whereas, something etched into the walls of cyberspace has the potential to last forever and be indelible.

The Location is Not Relevant

All that is required is proof of publication of a statement, proof that it could cause the average reader to think less of the person mentioned in it and that the statement was untrue. Whether a statement is published online or in conventional media is not a relevant consideration.

More relevant is the further point made by Roger Blow as reported by News.com, that people have to be cautious as legal proceedings involving online defamation are often "complex", "lengthy" and "expensive".

An example of the complex, lengthy and expensive aspect is the recent defamation case between Treasurer Joe Hockey and the Fairfax Media that revolved around some advertising material and two tweets. Even where none of the actual content of the newspaper stories was found to be the problem, just the Tweets and Banners used to promote them - a costly case eventuated for both protagonists, being ultimately settled for $200,000 (see Hockey v Fairfax: Defamation - The Substance Survives But Not the Spin).

Upfront consideration of cost in particular in bringing an action is important, as Roger Blow is also quoted as saying:

“Victims and protagonists alike have to decide how much they are willing to spend to bring or defend defamation proceedings. There is a good reason why such claims are usually only brought by celebrities with deep pockets, . . . Many individuals don’t understand what they are getting themselves into.”

Increased Reach Makes for Greater Risk

In a recent report, ABC news quotes Dr Mark Williams, Solicitor and RMIT lecturer, as saying in the past 20 years the key change in the "defamation landscape" has been the potential for statements posted online to go viral:

"You've always been able to defame, as it were, somebody by sending a letter to a third party, . . . It's just that now the reach is potentially worldwide, where the thought patterns of a lot of people are still quite local and personal."

In other words the argument is that the potential is for higher damages because there is now the capacity to reach more people. Effectively, greater reach gives online posters greater power but also increases their risk of unwitting liability for defamation. A recent example of unwitting liability, involving the ABC was a Tweet that was broadcast on a recent Q&A program which contained a vulgar Twitter handle (pseudonym) referencing the Prime Minister. While clearly unwittingly re-published the possibility was there for a re-publisher, such as the ABC, to be found liable in relation to such re-publications. Note, here the defamation was potentially not even in the Tweet itself but in the "handle " (pseudonym) used by the poster.

Social Media and Popularity

Social media is all about the number of followers/ friends you reach and your online popularity, the two elements which in one space make it both fun and also dangerous in terms of defamation and like legal issues.

In a recent paper to Magistrates' Court of Victoria Professional Development Conference High Court Justice Bell, speaking of the relationship with - and - the use to be made of social media by the legal system, states:

"The integrity of the administration of justice is not measured by popularity."

A point well made about the informality of social media and the false sense of security it creates which can lure people into being less guarded about what they say. Social media in the form of Twitter and Facebook is about generating and provoking response, proving your popularity by what you say and as such is also bristling with danger for those who post carelessly. To quote Justice Bell further when speaking of how much the courts should engage in social media:

"However, the immediacy, informality and limited ability to control the material that is posted in response are considerations which may favour a cautious approach to wider use."

In fact the "immediacy", "informality and limited control" are probably wise consideration for all users of social media to keep in mind before hitting a "Post" or "Send" button.

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