As children, we usually hear that “sticks and stones may break my bones, but names will never hurt me”. In reality, that isn’t the case and we all know that name-calling and bullying hurts. It’s now critical that before you publish anything on social media (i.e. before posting a status), you consider the possible implications. We look at a recent matter in Queensland which serves as a warning to social media users.

So, What Happened?

The matter involved a divorced husband and wife, and a Facebook post that she alleged stated that she committed criminal offences, and suffered from a mental disorder. Her former husband posted the following to his Facebook page in 2014, “June turned out to be a thieving, lying, money crazed bitch who screwed me out of nearly 3 million rand – may she rot in Hell“.

Establishing a Defamation Claim

An aggrived party to successfully establish a defamation claim must prove the following:

  • The communication has been published; and
  • To a third party; and
  • Identifies or is about the aggrieved party; and
  • Contains defamatory matter.

Defamatory matters are where in the eyes of a “reasonable person” the plaintiff’s reputation has been lowered.

The ex-husband raised several defences to the wife’s claims, namely:

  • It was not clear whether the post was actually directed at her;
  • The post was intended to be private. He inadvertently posted it publically;
  • He published the article in South Africa, and there was no evidence that it was ‘downloaded’ in Queensland; and
  • It was unclear that the post actually implied the words the wife said it did.

It was clear that the husband had posted the status during a particularly bitter and long-running marital breakup, but ultimately that did not matter in this case and didn’t form part of a Court’s considerations.

What Did the Court Decide?

The Magistrate considered the claim and the defences raised, and found in favour of the wife. He held that it didn’t matter if the communication was unintentional. What mattered was that there had been communication of defamatory material to third parties. Moreover, it was clear that the post had been directed to the ex-wife as the husband had posted an apology on Facebook to her at a later date.

Damages

The Magistrate then had to consider what damages to award the former wife. She sought $150,000 as part of her claim (under the Defamation Act, the maximum you can receive is $324,000). Consistent with previous defamation cases, the Magistrate awarded the former wife damages of $10,000 plus interest – a substantial reduction in the amount the wife claimed.

Key Takeaways

What is painstakingly clear is that you should think before you post a status/tweet/pin that may be considered defamatory. Words said in the heat of the moment are no longer just circulated to family and friends, they are usually published in print for the world at large to see.

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If you have concerns about any published material, get in touch with our disputes lawyers who can provide you with preliminary guidance on 1300 544 755.

Emma George

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