Harry Jordaan, an experienced defamation lawyer and member of the commercial litigation team at Quinn & Scattini Lawyers, explains the importance of caution before publishing anything on social media.

“People should think about anything that they publish online as it leaves a digital footprint, especially on Facebook where any entry is left as a digital footprint for life.

It is not only criminal proceedings that people have to be mindful of when publishing content online, it is also something which can be subject to civil proceedings.

As of 1 July 2013, in accordance with s53 (3) of the Defamation Act 2005 (QLD), the maximum penalty for non-economic loss in civil defamation proceedings became $355,500.00.

In matters concerning economic damages s34 of the Defamation Act 2005 (QLD) provides that there are no limits to the level of compensation that can be awarded, provided that damages should bear relationship to the harm,” Harry said.

Some recent examples of defamation discussed in the press over the last 6 months, include –

Detailed below are some cases that have appeared before the Queensland Courts

Example 1 – Damages: How are they awarded? –

Roberts v Prendergast [2013] QCA 47 deals with a Court of Appeal case concerning statements that were made by a Defendant to workers associated with the Plaintiff, such as he is “an incompetent builder”, that he was “a dishonest builder”, and that “his reputation (was) so bad that any person doing business with him (was) ruining their own reputation”.

It was noted in the Appeal, which was ultimately unsuccessful, that damages are awarded for three purposes, namely –

  1. “Reparation for the harm done to the personal and, if applicable, business reputation of the person defamed”;
  2. “To give consolation for the personal hurt and distress caused by the publication”; and
  3. “To vindicate the person’s reputation”

Further, it was noted by the Judges that the Appeal was also rejected because it was argued on behalf of the Appellant that damages should not been awarded because a person defamed “does not get compensation for his damaged reputation.” However, it was decided that a person is entitled to damages “because (they were) injured in their reputation, that is simply because (they were) publicly defamed”.

Example 2 – Damages: Defamatory Emails

Hallam v Ross [2012] QCA 407 concerned a matter before Her Honour Margaret Wilson where numerous emails were sent publicly by the Defendant containing imputations that –

  1. The Plaintiff colluded in a criminal way with other arborists;
  2. The Plaintiff had falsified a government certificate;
  3. The Plaintiff is a criminal;
  4. The Plaintiff is dishonest;
  5. The Plaintiff is an arborist whose work is an example of world’s worst practice;
  6. The Plaintiff is a liar.

Her Honour found that the imputations that the Plaintiff is dishonest and that he is a liar were substantially true.  However, it was found that neither the imputations that Plaintiff was a criminal or that his work is an example of the world’s worst practice were true so therefore defamatory.

It was also mentioned in the judgement that the “defamation was serious and the publication was very broad, done over electronic media with the potential to spread in ways unknown to the plaintiff.”

Aggravated damages was also awarded.

Example 3 – Damages: Publication of Pictures of Private Parts –

McDonald v N.Q.Newspaper Company [1996] QCA 115 has some interesting facts as the Defendant published pictures of the Plaintiff, a rugby league player, while playing with his penis hanging out.  The Court found under the old Act that “a publication which exposes another to ridicule is defamatory”.

Example 4 – Damages: Risks in Pursuing –

In a high profile matter concerning Jeffrey Archer, he decided to sue a newspaper for defamation.  The defence of the newspaper was that the statements that they were making were true, which ultimately set in motion events which led to him being prosecuted and jailed.

Warnings given to any client wanting to pursue defamation, include –

  1. Is the allegations true; and
  2. Is there any possibility of other information being revealed in the course of the legal action which might lead to potential charges?

An online social media user should always exercise caution as anything can be used against them. Some people forget but important considerations to make, include –

  1. Is your post defamatory by community standards (i.e. degrading a person you do not like repeatedly and viciously)?  If for instance someone loses their job this could result in a very high damages claim.
  2. Are you directly naming people in your posts?  Anything mentioned which can be directly associated to a person whether it is a friend, a boss, a celebrity, a politician etcetera could be open to defamation proceedings if they are defamatory in nature.
  3. Deleting posts regularly or after a period of time does not stop posts being recovered and still potentially used against you at some point.

Quinn & Scattini can assist clients accused of defamation and/or criminal charges.  We also regularly assist clients, so that they do not feel they have to resort to harassment, by pursuing through legal means the perpetrator, either to obtain a monetary compensation or other types of penalties.  However, the position of the client can be hampered if a client chooses to “take action into their own hands” by harassing and/or threatening.