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:

1. The parties were a separated husband and wife.

2. 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'. 

3. The Judge found she had admitted that she posted the Facebook post. 

4. 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

1. 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.

2. 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.

Overview of what a 'concerns notice' is in defamation law in Western Australia

Uniform defamation legislation is in place across Australia to promote speedy and non-litigious methods of resolving defamation disputes (Defamation Act 2005 (WA) s 3(d)).

   The first step in a defamation proceeding is for the victim of defamation to issue what is known as a concerns notice.

   The issuing of a concerns notice provides an avenue for the parties to resolve the matter without resorting to formal legal proceedings.

   A concerns notice is the document which outlines exactly what defamatory statements are alleged to have been made, when the statements were made, who they were published to, what defamatory imputations can be drawn from the publication, and what amends are requested.

   The purpose of a concerns notice is to set in motion the offer to make amends set out in Part 3 of the Defamation Act 2005 (WA).

For a notice to be a concerns notice:

1. It must be in writing (Defamation Act s 14(2)(a)); and

2. It must inform the publisher of the defamatory imputations that the aggrieved person considers are or may be carried about the aggrieved person by the matter in question (Defamation Act s 14(2)(b)).

    When a person receives a concerns notice they may request particulars of the defamatory imputations if they either haven’t been provided or haven’t been provided adequately (Defamation Act s 14(4) & (5)).

    Alternatively, a statement of claim will operate as a concerns notice for the purposes of the Defamation Act if it complies with the requirements of s 14(2) (Zoef v Nationwide News Pty Ltd [2016] NSWCA 283, [92]).

   Once a person has been issued with a concerns notice then the publisher has 28 days to make an offer to make amends (Defamation Act s 14(1)(a)).

   It is implicit in the construction of s 14(1) of the Defamation Act that a person has a reasonable period of time to respond to the content of a concerns notice (Douglas v McLernon (No 4) [2016] WASC 320, [262]).

   In some cases, it may be that after the expiry of a reasonable period of time to respond, the person in receipt of the concerns notice can be taken to have been aware of the existence of the alleged publications, and the concerns notice could even function as evidence to that effect (Douglas v McLernon (No 4) [2016] WASC 320, [262]).

   If the person could put a stop to ongoing publication (by another person), then an inference may be drawn in certain circumstances that the person then either acquiesced or participated in the publication from that point on.