20 October 2015
Social media in the courts: dealing with defamation
As the legal market continues to learn how to handle the collision of the law and social media, the District Court of New South Wales has handed down a case that serves to illustrate a number of matters worth bearing in mind when considering aspects of social media in a litigation context. What is apparent from the case is that the Australian legal system is well armed to capably deal with general litigation that involves the use of social media in some way.
Background to the proceedings
The original proceedings were brought as a result of a publication by the defendants on a community Facebook page in relation to the plaintiff. The plaintiff claimed he was defamed, as the post alleged that he was violent, mentally unstable and sociopathic in the manner by which he cared for and allowed his pet dogs to behave.
The matter was initially the subject of a settlement agreement whereby the defendants were required to post an apology to the community Facebook page within 14 days, following which the proceedings would be discontinued.
Four attempts were made by the defendants to publish the apology on the Facebook page. The first attempt to apologise was removed by the administrators of the Facebook page, as they were of the view that the post was “having a dig” at the plaintiff, and were not aware of the requirements under the deed. The second apology was removed by someone other than the administrators of the page after being posted for only a short period of time. Ultimately, the apology was properly published four weeks after the date provided for in the settlement agreement.
The plaintiff refused to discontinue the proceedings, due to the delay in publishing the apology and non-compliance with the deed obligations. The defendants attempted to compel the plaintiff to comply with the settlement agreement, and discontinue the proceedings.
The plaintiff took the view that there was no settlement and the proceedings should continue.
The judge held that while the defendants did not strictly comply with their obligations under the deed, the effect of the apology was the same as it was ultimately published to the community Facebook page. On this basis the proceedings were finalised.
In coming to this view, the judge found that because the Facebook page administrators were not given any forewarning about the posting of the apology, they had prematurely removed the post. The judge also found that the first defendant had himself removed the second apology.
This case serves as a timely warning to those using social media as a platform upon which to air ‘dirty laundry’.
It illustrates how easy it is to publish material using social media, and to become embroiled in a defamation claim. A Facebook post may start out as a relatively glib venting of one’s spleen to a small audience, but can quickly become re-publication on a much more significant scale, with concomitant increase in damage caused. Once the post is made, it is out of the poster’s control and can easily develop a life of its own.
Even after the initial claim was settled, the requirement of posting an apology to a third party social media site caused further complications, with the result that the parties bore unnecessary cost and wasted their, and the court’s, time. As the instigator of the issue and the reason why the apology was not properly made in a timely manner, the defendants were the subject of an unfavourable costs order as well. In such circumstances, parties must consider how best to ensure that required actions are not impeded, if unwittingly, by third party owners and administrators of social media sites and pages.
This case provides another example of an Australian court demonstrating the capacity to deal with disputes involving elements of social media, including sometimes complicated technical evidence. Whilst there remains issues with quickly and cheaply compelling the removal of offending posts from social media platforms, in more general litigation such as in this case, the courts are eminently capable of dealing with the social media issues that arise in legal proceedings.
 Mohareb v Palmer (No 2)  NSWDC 141.
Authors: Gavin Stuart and Ben Hardy