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Australia – I Heard It Through The Grapevine: When Twitter And Defamation Collide.

22 May, 2014

 

Legal News & Analysis – Asia Pacific – Australia – Dispute Resolution

 

Mickle v Farley [2013] NSWDC 295 


NSW’s first defamation judgment in relation to a Twitter publication has drawn attention to the importance of the grapevine effect in social media. This case examined defamatory remarks which a young man posted about a teacher at his former high school on social media sites, Twitter and Facebook. The plaintiff was awarded damages of AUD 105k  in the November 2013 judgment by Justice Elkiam.

 
On 15 November 2012, Andrew Farley (defendant), a former student of Orange High School, posted defamatory comments on Twitter and Facebook about Ms Christine Mickle (plaintiff), music teacher at Orange High School. There were further defamatory Twitter publications on 24 November 2012. The comments were curious on their face, as Ms Mickle had never taught Mr Farley whilst at the school. The Court found that the defendant had a grudge against the teacher, as it seemed he believed she was responsible for his father (the previous head teacher of music) leaving the school. The evidence available indicated that the defendant’s father had left the school for personal health reasons.

 
At the end of November 2012, the plaintiff’s solicitors wrote to the defendant asking him to remove the defamatory material. There was no response. A second request on 12 December 2013 soon followed. On 20 December 2012 the defendant responded stating that the comments were removed, and that he “apologised unreservedly to Ms Mickle for any hurt or upset caused to her by statements made on [his] social media page”.

 
In considering damages, the Court noted that despite the defendant’s apology, his apparent sincerity was contradicted by later events, including an attempt to plead truth in the initial Defence. The Judge noted “the defence of truth when it is spurious is particularly hurtful to a person who has been the subject of such unsubstantiated allegations”. The Court found the initial act of pleading truth contributed to the award of aggravated damages. While the truth defence fell away and an Amended Defence pleading qualified privilege was filed, this was ultimately struck out. The Court further took into account that the plaintiff immediately went on sick leave after the publications and had only just returned to teaching on a limited basis. The Court found that but for this event, the plaintiff would have continued teaching full time until the age of 65.

 
The Court noted that “compensation is intended to vindicate the person’s reputation in the eyes of the general community and compensate the person for the distress and insult felt”. This was especially so, as there was strong evidence as to the high esteem the plaintiff was held in prior to the publication. The Court also considered that:

 
“… 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.”

 
Consequently the Court ordered compensatory damages of AUD 85k and additional aggravated damages of AUD 20k. The defendant did not attend the trial.

 
This case is among a growing number of defamation cases worldwide that involve social media. It serves as a reminder of the potentially significant effect of a Facebook post or a mere 140 character tweet. Care should be taken in relation to online publications. Employers should also ensure that their social media policies are up to date and are properly understood by employees.

 

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Jessica Norgard, Ashurst
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