In a judgment handed down on 29 November 2013 in Mickle v Farley, Judge Elkaim of the District Court of NSW found that a former Orange High School student, Andrew Farley, must pay $105,000 damages as a result of false comments he made about his former teacher, Christine Mickle, on Twitter and Facebook.
The case is significant to defamation lawyers and users of social media, as it is the first such Australian case involving a judgment and award of damages for defamatory remarks made on Twitter.
Mr Farley had developed heightened animosity towards Ms Mickle, who had replaced Mr Farley’s father as a music teacher in 2008, on an acting basis. It appeared that Mr Farley in some way held Ms Mickle responsible for his father’s leaving the school. On 15 November 2012, Mr Farley posted a number of comments about Ms Mickle on Facebook and Twitter, and on 24 November 2012, Mr Farley published further defamatory comments on Twitter.
The Court held that those comments about Ms Mickle held imputations that were defamatory and untrue.
Judge Elkaim said that Mr Farley’s comments had a “devastating effect” on the teacher, who took sick leave as a result. Judge Elkaim further held that “my impression of the plaintiff in the witness box was one of a very honest woman who had been terribly hurt both by the comments in general but perhaps more particularly by the suggestion that she may have been responsible for any harm, ill health or effect of any of her actions on the defendant’s father”.
Judge Elkaim found that “An award of damages must not be excessive but must signal to the public that the vindication of the plaintiff’s reputation has been attempted so that the public will know that the lies published by the defendant have no truth whatsoever” . Taking account that the maximum available to be awarded under the Defamation Act (NSW) 2005 was $355,500, compensatory damages of $85,000 were awarded.
Ms Mickle also made a successful claim for aggravated (or punitive) damages, in light of Mr Farley’s overall conduct in the case. His Honour was minded to grant such damages, and awarded Ms Mickle an additional sum of $20,000. In doing so, his Honour noted that:
- Mr Farley made no genuine attempt to promptly respond to Ms Mickle’s solicitors’ claims regarding the defamatory comments, contained in their letters in November 2012 and December 2012, until 20 December 2012.
- In the 20 December 2012 letter, Mr Farley gave the appearance of an unequivocal apology and appeared to provide an undertaking that the publications had been removed from social media and stated “I apologise unreservedly to Mrs Mickle for any hurt or upset caused to her by statement made on my social media page.”
- Mr Farley later contradicted that position by pleading a defence of truth and then still later filed an Amended Defence abandoning a truth defence, and elected to run a defence of qualified privilege, which was ultimately struck out by the trial Judge Olsson.
- Mr Farley thereafter lost interest in the proceedings and chose not to appear in Court.
Significantly, Judge Elkaim made findings in awarding aggravated damages as to the way in which social media operates to disseminate opinion’s regarding the reputations of other, taking into account the technology available in the community today. His Honour found that “Publications… made on social media …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. I have taken that into account in the assessment…”.
Mickle v Farley serves as a stark warning to users of Facebook and Twitter, where comments posted online can be searched, forwarded or reposted without the control of the originator of the comments, to be aware that Australian Courts will be more minded to consider social media dissemination of comments as an aggravating factor in awarding higher damages.
The case also serves as a reminder to defendants to defamation proceedings to consider defences thoroughly before committing them to a formal pleading, particularly a defence of truth, in circumstances where such defences, found to be wholly untenable, may also act as an aggravating factor for an award of punitive damages.
In many regards Judge Elkaim’s decision is an acknowledgement of the developing nature of social media and the many forms of technology that facilitate faster and wider publication of comments.
Payam Tamiz v Google Inc.
The decision in Mickle v Farley is in stark contrast to the decision of the England and Wales Court of Appeal (Civil Division) in Payam Tamiz v Google Inc.
In that case the Evening Standard Newspaper published an article alleging that Mr Tamiz had resigned as a Conservative Party candidate following negative comments about women made on his Facebook page. Mr Tamiz ultimately resolved his case against the Evening Standard, and thereafter proceeded to pursue Google over defamatory comments posted by anonymous bloggers on a London Muslim blog (which appeared under an article about the incident). Mr Tamiz first notified Google on 28 or 29 April 2011 when he used the “Report Abuse” function, however Mr Tamiz’s Letter of Claim was later received by Google Inc. in July 2011 and the comments were removed voluntarily by the blogger in August 2011.
Mr Tamiz thereafter sought to bring a claim in libel against Google in respect of the publication of the allegedly defamatory comments during the period prior to their removal. Mr Tamiz was initially granted permission to serve the proceedings on Google Inc. in California, however Google successfully applied to set this decision aside and Mr Tamiz appealed.
At first instance Eady J, applying the principles in Jameel v Dow Jones accepted that given that the period of time between Google being notified of the words complained of and the removal of the Blog was so short, any potential liability was so trivial that the continuance of the proceedings could not be justified. The Court of Appeal agreed, and said that an insignificant number of people would have read the comments in question in the period between notification and removal and as such any reputational damage during the relevant period must have been trivial. In dismissing Mr Tamiz’s appeal, Richards LJ (delivering the judgment on behalf of the Court of Appeal) found that although some of the comments were likely defamatory, Google’s potential liability for defamation was so trivial that the case should not proceed in any event as the comments were no more than ‘mere vulgar abuse’.
The Court of Appeal considered that comments made on a blog would be less harmful than others, given that they are followed by other comments in a chain that push them into a history which can be difficult to see. As such the ability for further damage to be caused by those comments being read (in this case some two and a half months after the comments were removed by Google, once it had been notified) would have been minimal.
The Court of Appeal’s findings that Mr Tamiz’s case should fail because the comments did not amount to a real and substantial tort for the time for which they were published accordingly differs from the comments by Elkaim J in Mickle v Farley about the nature of online reputation.
Although the case of Tamiz v Google proceeded under defences available within s. 1 of the Defamation Act 1996 (c.31) (a United Kingdom Act of Parliament), recent amendments contained in the UK Defamation Act 2013 (c. 26) introduce a ‘triviality’ threshold, whereby any defamation action requires that the defamatory comments have to have caused, or be likely to cause, “serious harm” to the reputation of the claimant. In Australian law, triviality may be a defence to defamation actions in Australia, where the defendant is able to prove that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.
Under the common law of England and Australia, the tort of defamation is actionable without the need for proof of actual damage to reputation. Such presumption places the burden on the defendant to proceedings rather than the plaintiff. By contrast, alternative claims in tort for injurious falsehood require that the plaintiff prove that there was actual economic loss, that the statement was false and that it was maliciously made. His Honour Weinberg J recorded the difference in Orion Pet Products Pty Ltd v. Royal Society for the Prevention of Cruelty to Animals Inc. (Vic) holding that “the law of defamation protects interests in personal reputation while injurious falsehood protects interests in the disposability of a person’s property, products or business. Defamation is generally actionable without proof of damage. Falsehood is presumed and liability is strict.