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.

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

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?

  1. Think before you post!
  2. Anonymous or fake profiles are no protection.
  3. Think before you post!
  4. Ordinary people can be sued for defamation.
  5. 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.


In the pop culture classic film “Mean Girls”, the Plastics have their Burn Book – a book where they record mean observations about their school community. It’s the revelations of the Burn Book that leads to chaos in the film.

Think of social media as the Burn Book on steroids.

This is the first of a two part series on defamation and social media. Social media and particularly Twitter present challenges as it allows instantaneous communication by anyone with a social media account. I will not be discussing here the possibility of Twitter being culpable as a publisher in Australia.

In 2011, the Supreme Court of Western Australia has commented on the distinction between traditional and electronic media in the decision of Prefumo v Bradley, noting users post online without proper consideration of their actions:

Twitter, blogs and other forms of social media such as Facebook impact on the way people communicate and the language they use. Communications through those media often lack…formality and careful consideration…that will effect both what is regarded as defamatory and the potential for harm.

What is Defamation?

Defamation law protects individuals’ reputations and assumes that all people are of good character unless the opposite is proved. A negative statement concerning someone’s character may not necessarily be defamatory – it depends on factors such as to whom it was sad and the context in which it was said.

Twitter

Twitter currently has 645,750,000 active registered users worldwide, who tweet a daily average of 58 million messages,¹ leaving users potentially exposed to defamation proceedings because the 140 character limit leaves little space for context. Social media is mistakenly perceived as an authority for information by some, and a user of some celebrity is definitely influential.

Legal Action

There have been a number of recent defamation matters in Australia and the United Kingdom which have arisen from Twitter.

Cairns v Modi [2012] EWHC 756 (QB) was the United Kingdom’s first Twitter defamation litigation. The parties were a former international cricket player and a commissioner of the Indian Premier League cricket. The decision examined the publication of the defamatory tweet (which for obvious reasons, will not be re-published here). For the purposes of the trial, it was agreed that 65 of Mr Modi’s followers would have read it, and it was accepted there would have been substantial publication beyond that through re-tweeting.

The trial judge, Mr Justice Bean observed that “the poison tends to spread far more rapidly” when comments are published by anyone with a significant profile and following on Twitter, and is therefore able to go viral almost instantly to a global audience. Once publication was established, the trial judge applied the usual principles of defamation and found Mr Modi’s tweet defamatory of Mr Cairns. Mr Cairns was awarded £90,000 for damage to his reputation.

In The Lord McAlpine of West Green v Sally Bercow [2013] EWHC 1342 (QB), Mr Justice Tugendhat found the tweet sent by the Ms Bercow bore a “natural and ordinary defamatory meaning” and in the alternative, an “innuendo meaning” of the same effect . The tweet emanated from a television program which made serious allegations of child abuse against an unnamed politician from the Thatcher years. Other defandants had apologised and settled before trial. Ms Bercow argued that the phrase “ * innocent face * “ was to be understood in a neutral rather literal manner, maintaining that she had noticed Lord McAlpine’s name was trending on Twitter and was simply asking why. Her defence was rejected.

In 2011, Australian media personality Marieke Hardy settled out of court with the individual whom she incorrectly named as the author of a hate blog against her by paying him undisclosed damages and issuing a public apology.

How can you protect yourself?

1. Think before you tweet!
2. Disclaimers on your profile offer no legal protection.
3. Think before you tweet!
4. Ordinary people can be sued for defamation.
5. Think before you tweet!

Sally Bercow said it best in her statement after the ruling which cost her undisclosed damages and legal costs of more than £100,000:

Today’s ruling should be seen as a warning to all social media users. Things can be held to be seriously defamatory even when you do not intend them to be defamatory and do not make any express accusation. I have learned my lesson the hard way².

Yolanda Floro
Yolanda 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.

¹http://www.statisticbrain.com/twitterstatistics/
²http://www.leeandthopson.com/2013/06/17/mcalpine-v-bercow-a-hard-lesson-for-social-media-users/