$105,000 award­ed for defam­a­to­ry tweets

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In Brief

The Dis­trict Court of NSW has ordered a Defen­dant who post­ed defam­a­to­ry state­ments on Twit­ter and Face­book about a local school teacher, to pay $105,000 in com­pen­sato­ry dam­ages .This deci­sion, the first of its kind in Aus­tralia, sends a clear mes­sage that per­son­al attacks using social media will not be tolerated.

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The Facts

The Plain­tiff, Ms Chris­tine Mick­le, an esteemed teacher with an estab­lished and excel­lent rep­u­ta­tion and with many years expe­ri­ence, taught in the music and arts depart­ment at Orange High School. In Novem­ber 2012 stu­dents approached the School Prin­ci­pal to request that there be a re-nam­ing of the music cen­tre as the ​“Mrs Mick­le Music Cen­tre” in hon­our of the Plain­tiff and her his­to­ry of devo­tion to her stu­dents and class­es. The Defen­dant was an ex-stu­dent of Orange High School, and son of a for­mer Orange High School music and arts teacher who left the school in 2008 in order to attend to per­son issues. It is under­stood from media report­ing of the case, that the Defen­dant took to social media upon learn­ing of Mrs Mick­le’s recog­ni­tion. The Defen­dant pub­lished abu­sive and defam­a­to­ry posts about the Plain­tiff on Twit­ter and Facebook.

It was sub­mit­ted to the court that the Defen­dant held a grudge against the Plain­tiff based on the belief that she had some­thing to do with his father leav­ing the school. There was no evi­dence to sub­stan­ti­ate this belief.

The remarks made on social media were brought to the Plain­tiff’s atten­tion by the then School Prin­ci­pal who felt it appro­pri­ate to inform the Plain­tiff of the untruth­ful and dam­ag­ing remarks.

Dis­trict Court

Dis­trict Court Judge Elka­im accept­ed that the effect of the pub­li­ca­tions on the Plain­tiff was ​“dev­as­tat­ing”. This was evi­denced by the fact that the Plain­tiff imme­di­ate­ly took sick leave and is now only return­ing to work on a lim­it­ed basis. The Plain­tiff sub­mit­ted that but for the defam­a­to­ry pub­li­ca­tions she would have con­tin­ued to teach for a fur­ther 7 years until she reached the age of 65.
Accept­ing the Plain­tiff’s evi­dence Elka­im SC DCJ award­ed $85,000 in com­pen­sato­ry dam­ages which flowed from the estab­lished defam­a­to­ry pub­li­ca­tions. Elka­im SC DCJ high­light­ed the pur­pose of an award of dam­ages in defama­tion cas­es as:

“The 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”.

It was held that the behav­iour of the Defen­dant was less sin­cere that seemed at first. At the end of Novem­ber 2012 the Plain­tiff’s solic­i­tor wrote to the Defen­dant. With no response, a fur­ther let­ter was sent on 12 Decem­ber 2012. A reply was received on 20 Decem­ber 2012 con­tain­ing an apol­o­gy and an under­tak­ing to remove all com­ments refer­ring to the Plain­tiff off his social media pages.

The Defen­dan­t’s sin­cer­i­ty how­ev­er did not extend beyond his ini­tial reply. The Defen­dant filed two defences in the pro­ceed­ing includ­ing the defence of truth, which were ulti­mate­ly struck out or with­drawn because they had no sub­stance or truth. The Defen­dant also failed to appear before the court in rela­tion to the matter.

Elka­im SC DJC, there­fore award­ed a fur­ther amount of $20,000 in aggra­vat­ed dam­ages due to the con­duct of the Defen­dant. The total award of dam­ages was $105,000.

A warn­ing from the court

This case high­lights the fact that the prin­ci­ples of defama­tion law apply equal­ly to state­ments made on social media as well as to pub­li­ca­tion in oth­er forms of media. Elka­im SC DCJ warned in his clos­ing statement:

“When defam­a­to­ry pub­li­ca­tions are made on social media it is com­mon knowl­edge that they spread. They 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 of dam­ages that I pre­vi­ous­ly made” 

Points to con­sid­er about social media posts in the workplace

• The use of social media has become preva­lent in the workplace.
• Employ­ers and employ­ees need to be aware that social media posts may have dev­as­tat­ing consequences.
• In a soci­ety where indi­vid­ual and busi­ness rep­u­ta­tion is impor­tant, employ­ers should ensure that they have a strong social media pol­i­cy not only to edu­cate staff on the seri­ous con­se­quences of post­ing on social media pages but also to seek to pro­tect indi­vid­ual employ­ees’ per­son­al and pro­fes­sion­al rep­u­ta­tions and seek to pro­tect them from dam­ag­ing post­ings on social media. 
• Where social media posts result in defama­tion pro­ceed­ings, the court is like­ly to take into account the grapevine effect of this form of com­mu­ni­ca­tion when assess­ing dam­ages.