A simple explanation of what makes something defamatory ... does it make people (a) think less of the person it is about, or, (b) make people want to avoid that person.
It's not necessary for the statement to say that the person is bad, but if it says that they are not good at their job or lack qualifications, that is enough.
An example is if someone says "X is a nice person but can't do surgery well" about a surgeon, it would be damaging to their reputation because it affects their profession, but if someone says the exact same words about a person who isn't a surgeon (perhaps, for example, where it turns out the person is actually a plumber), it wouldn't be considered defamatory.
The Link Between Duels and Defamation
Let's duel at dawn! ... The history of defamation takes most people by surprise, but makes sense when you work as a defamation lawyer.
Doing this job, you come to realise that it's not so much about money for the injured party. It's about their reputation being vindicated.
The evolution of how society deals with false statements that damages a person's reputation has many twists and turns. But one linkage is especially thought-provoking.
In the past, the duel was seen as a way to restore a person's honour if it was believed that their reputation had been damaged by false statements.
As society progressed, the use of duels as a means of resolving defamation cases was phased out and replaced with more legal forms of redress.
In 1613, King James I issued a royal edict against duelling, and this was reinforced by a Star Chamber decree in the following year.
From that point on, courts waged a continuous hostility to the duel in all its forms. They refused to regard it as in any way an affair of honour, but held it to be an unlawful assembly in an aggravated form.
The creation of the tort of written defamation was a way to address non-political, non-criminal libels.
It was a solution to the question of how to restrain these types of libels, when the vindication of the duel was no longer an option.
We often overlook the historical context of our laws, as we navigate a rapidly-changing landscape. But it helps to better understand human nature, if we learn about where our laws have come from.
Compensating for Injury to Feelings: A Standard Part of Defamation Damages
Many people are surprised to learn that damages for injury to feelings can be awarded in defamation cases. In addition to protecting one's reputation, the tort of defamation also recognizes the harm caused by hurt feelings.
Lord Diplock stated, "The harm caused to the plaintiff by the publication of a libel upon him often lies more in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him."
An award for injury to feelings is a standard part of compensatory damages. Additionally, if the defendant's conduct has exacerbated the plaintiff's injury, they may also be entitled to "aggravated damages." It's important to note that corporations cannot claim injury to feelings.
It's possible for a plaintiff to prove injury to reputation by showing they have been "shunned and avoided" by others as a result of the defamatory statement. BUT, such evidence can also demonstrate substantial hurt to the plaintiff's feelings.
What are the consequences of being a publisher of defamatory third party comments on social media?
DEFAMATION ... In Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 the High Court affirmed traditional concepts of what a 'publisher' is in defamation law (in the context of social media).
1. The media companies Fairfax Media Publications, Nationwide News, and Australian News Channel were held liable for defamation as publishers of third party comments made on their public Facebook pages.
2. The High Court of Australia determined that liability as a publisher does not require knowledge of the defamatory matter and that any act of participation in the communication of defamatory matter to a third party is sufficient to render a person a publisher.
3. Importantly, the Court found that the degree of active and voluntary participation is irrelevant, provided that some kind of involvement can be proved.
4. The media companies were held liable for defamation as publishers of the defamatory third party comments because they actively and voluntarily participated in the process of making the comments available for comprehension by a third party.
If you have been a victim of defamation on social media, feel welcome to contact me to discuss your options.
Are you a victim of 'revenge porn'?
In Wilson v Ferguson [2015] WASC 15 the Supreme Court of Western Australia dealt with a "revenge porn" case.
What happened?
The plaintiff and defendant were each employed at a Fortescue Metals Group mine site as fly-in-fly-out workers. They met in 2011, moved in together in 2012, and were together until August 2013 when the relationship broke down.
During their relationship, the plaintiff and defendant exchanged sexually explicit photos of each other. The defendant also obtained, from the plaintiff’s phone, 2 sexually explicit videos of her, which he undertook not to show to anybody else.
The relationship deteriorated as the plaintiff suspected the defendant was cheating on her.
In August 2013, she texted him saying she wanted nothing to do with him.
In response, at 5.20 PM on 5 August 2013 the defendant posted via his Facebook page, 16 explicit photos and 2 videos of the Plaintiff either naked or semi-naked and engaged in sexual activities. They were accompanied by the caption ‘Happy to help all ya boys at home… Enjoy!’
The photos and videos were available to his 300 ‘Facebook friends’, many of whom worked on the same mine site. The photos and videos were taken down by the defendant at 7.00 PM that night, in response to requests from the plaintiff via text messages.
Because of the images being published, the plaintiff could not sleep, undertook counselling, and was unable to work and took leave without pay until 30 October 2013, losing wages of $13,404.
The defendant’s employment at the mine site was terminated on 14 August 2013.
Summary of the law the Judge relied on
The Defendant did not take an active part in the proceedings other than filing a defence, and was not present at the trial.
The Judge inferred that the defendant wanted to cause the plaintiff extreme embarrassment and distress, and was aware the images were private and he did not have the plaintiffs’ consent to show them to any other person (at [33]).
The Judge adopted the principle described by the Court in Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39, 50, in relation to proceedings for a breach of confidence. That is that a court will restrain the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged (at [43]).
The essential elements of an equitable action for breach of confidence are that the information was of a confidential nature, that it was obtained in circumstances importing an obligation of confidence, and that there was unauthorised use of the information (at [46] citing West Australian Newspapers Ltd v Bond [2009] WASCA 127).
The Judge referred to Gleeson CJ’s comments in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63, [34] – [35], that a private image may constitute confidential information, and that “the requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private” (at [53]).
For the reasons below, the Judge found that the defendant had breached his equitable obligation owed to the plaintiff to maintain the confidentiality of the images (at [55]).
Firstly, the intimate images of the plaintiff had the necessary quality of confidence about them, which was clear from their explicit nature, and the discussions between the plaintiff and defendant in which the plaintiff emphasised their deeply personal nature ([56]).
Second, the circumstances in which the defendant obtained the images imposed an obligation of conscience to maintain the confidentiality of the images ([57]). The nature of the photographs and the circumstances in which they were obtained made it obvious to a reasonable person standing in the defendant’s shoes that the images were for his eyes only and not to be disclosed to anyone else. Such disclosure would cause extreme embarrassment and distress to the plaintiff, which in fact was the whole reason for his publishing the images ([58]).
Third, the defendant clearly misused the images by making them available for viewing and downloading to hundreds of Facebook friends, many of whom worked with both the defendant and the plaintiff. This was extremely distressing to the plaintiff as shown by her needing to take time of work and undertake counselling ([59]).
Why did the Judge award $48,404?
The Judge granted a permanent injunction to prevent the defendant from publishing photos or videos of the plaintiff engaging in sexual activities or in which the plaintiff is naked or partially naked. In addition, the Judge awarded equitable compensation for the breach of confidence.
The Judge referred to the case of Smith Kline & French Laboratories (Aust) Ltd v Department of Community Services and Health (1990) 22 FCR 73 as authority for the Court’s inherent jurisdiction to grant relief through monetary compensation for the breach of an equitable obligation, whether of trust or confidence (at [69]).
However, the question was whether equitable compensation could be awarded to compensate the plaintiff for non-economic loss (embarrassment and distress). Until recently, equitable compensation was only awarded to compensate for economic loss ([72]).
The Judge relied on Giller v Procopets [2008] VSCA 236 in which the Victorian Court of Appeal held that monetary compensation for emotional distress caused by the release of confidential personal information is available in the exercise of the Court’s inherent equitable jurisdiction ([73] – [78]).
The Judge found that technological advances have increased the ease and speed with which communications and images can be disseminated, therefore in many cases there will be no opportunity for injunctive relief ([80]).
Therefore, the approach taken in Giller, is an appropriate incremental adaptation of the established equitable principle, to accommodate the nature of electronic communications in contemporary Australia ([82]).
The Judge held that compensation should take account of the fact that the publication was intended to cause harm to the plaintiff, however the plaintiff had not sustained a psychiatric injury, therefore the amount should not be disproportionate to amounts commonly awarded for pain and suffering in tortious personal injury cases ([85]).
He awarded $35,000 in addition to economic loss of $13,404.
What about legal costs?
The plaintiff sought indemnity costs. However, the Judge applied the principles set out by the Court of Appeal in Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S), [10], that the discretion to award indemnity costs may be exercised where the unsuccessful party has engaged in unreasonable or improper conduct, such as persisting in a case which is hopeless (at [88]).
The Judge considered that the defendants’ failure to admit the plaintiff’s claim was not so unreasonable as to justify awarding indemnity costs, the plaintiff was simply put to proof of her case ([89]).
Therefore, the Judge ordered the defendant pay the plaintiff’s costs of the action.
Facebook defamation
Have you been defamed on Facebook?
Being defamed on Facebook is horrible.
You should consider issuing a concerns notice and commencing a Court case, in order to protect your reputation.
A previous decision
In 2014 the District Court of Western Australia handed down a decision, finding in favour of a plaintiff in a Facebook defamation case.
In Dabrowski -v- Greeuw [2014] WADC 175 the facts were that:
The parties were a separated husband and wife.
In December 2012 the defendant (the wife) posted on her public Facebook page an entry saying 'separated from Miro Dabrowski after 18 years of suffering domestic violence and abuse. Now fighting the system to keep my children safe'.
The Judge found she had admitted that she posted the Facebook post.
It was removed 4 months later, in February 2013.
At [183] the Judge stated:
To say that a person has for 18 years subjected their partner to domestic violence and abuse and that their children need to be kept safe from that person, tends to diminish the esteem in which that person is held by the community and/or diminish his standing in some respect and would lead an ordinary reasonable person to think lesser of that person and is defamatory.
The Judge decided that:
[248] Pursuant to s 7 of the Defamation Act, Mr Dabrowski is not required to prove special damages. Section 34 of the Act requires that any damage awarded have an appropriate and rational relationship to the harm actually suffered. The damages must be realistic.
[249] I have found that Mr Dabrowski was defamed. Mr Dabrowski has not claimed any consequential financial loss. Damages are appropriate.
The Judge award the plaintiff (the husband) $12,500, as well as interest on that money and also his legal costs.
The takeaways from the case
We should not feel powerless or in a weak bargaining position when someone defames us on Facebook, because it is realistic to go to Court over it.
You should hire lawyers like me, who are conscious of the realities of legal costs (and) who will manage the case so that decisions are made along the way that maximise the recovery of legal costs from the other side.