If you can’t say anything nice, don’t say anything at all.
It’s an old saying, but it rings true, especially when social media is your platform of choice for voicing some less than complementary opinions. The temptation to vent your frustrations via Facebook or Twitter can be overwhelming- after all, we spend a lot of time online. However, it’s all too easy to forget that what we post online is permanent and has the ability to haunt us, as one more than one celebrity has found recently.
What happens, though, when comments are more than nasty? What if they are defamatory?
In a recent case in which our Perth Office was involved, a disgruntled ex-employee took his frustrations out on his former employer in a very public manner – let’s call him Mr Ex-Employee. Mr Ex-Employee posted comments on his personal Facebook page suggesting the Chairman of his ex-employer deprived employees of their lawful rights and entitlements. The comments invited others to participate in legal action against the ex-employer. Mr Ex-Employee went further and later posted more material on his own Facebook page about creating a special interest page in an attempt to exert pressure on his former employer.
The identity of his former employer was made very clear.
Mr Ex-Employee also posted comments to a Federal Government Department’s Facebook page to the effect that he believed his ex-employer was breaching immigration laws. Although he did not name his ex-employer directly on those comments, it was open to anyone to link to his personal Facebook page where the ex-employer could be easily identified from the comments made there.
Both Mr Ex-Employee and the Government Facebook pages were public, such that any user of Facebook (or anyone with an internet connection, in fact) could access and read them.
So what is defamation anyway?
In Australia, the uniform defamation laws retain the common law of defamation for the purposes of determining liability. At common law, a publication is defamatory if it is likely to cause ordinary, reasonable persons to think the less of the plaintiff or to shun or avoid the plaintiff. It is not relevant that the person publishing the comments did not mean or understand them to be defamatory.
Generally, defamation is concerned with the communication of a defamatory message to another person (other than the person the defamatory comments are about) who is capable of understanding it. The act of communication can be in a variety of forms, including publication in a newspaper, or notably for our purposes, by electronic means. Each communication is a new instance of defamation, and a communication need only be made to one person for it to qualify.
Defamation laws protect individuals while only offering limited protection to corporations. Corporations that are governmental or public authorities have no cause of action for defamation. Similarly, unless a corporation is a ‘not-for-profit’ organisation or it has less than ten employees (and is not related to another corporation within the meaning of the Corporations Act), it will have no cause of action for defamation.
In the case of Mr Ex-Employee, the legal action was brought by the Chairman of the corporation (rather than the corporation itself) so the corporation issue did not arise. It was possible for the Chairman to bring the action for defamation because the company was well-known in Western Australia and the Chairman was readily identifiable, and thus he was able to be defamed by the comments.
Defamation by its very nature can have long lasting effects for clients. The cost of litigation is one thing, but the value of a client’s reputation is often ‘make or break’. Having the defamatory comments removed or withdrawn as early as possible is incredibly important. Facilitating an early settlement would be a strategic move, while pursuing litigation and aggravating the other party may be more trouble than your client is (literally) worth.
Back to the case involving Mr Ex-Employee, the Perth KWM team was able to resolve the matter early in the litigation process (much to our client’s satisfaction), after Mr Ex-Employee removed the comments from the Facebook pages and provided an apology.
So what can we ‘take-away’ from this?
- Although your client may be keen on recovering damages, damage (especially reputational damage) is exactly what you want to avoid in defamation matters. There may be more value in an apology than in a judgment.
- Consider the benefits of an early mediation – it allows the opportunity for parties to meet face-to-face, and the Defendant gets to hear the full case against them.
- If mediation won’t cut the mustard, a Calderbank offer or similar may be useful in facilitating an agreement.
- It’s not just celebrities and businesspeople who have valuable reputations, as shown in the case of a Coober Pedy ex-principal who was awarded $40,000 in damages after a Facebook ‘hate page’ was set up about her.
- Food for thought – although defamation laws provide protection for people against reputational harm, the laws themselves may actually impose limits on people’s international human rights, specifically their right to freedom of expression. Article 19 of the International Covenant on Civil and Political Rights provides the right to freedom of expression, subject to respect for the rights or reputations of others. This publication looks at case examples from around the world between 2007 and 2008, and makes for some very interesting reading.