Social media platforms such as face book and twitter have now become the normal platforms for community and social groups to keep informed and stay in touch with each other.
Unfortunately, the ventilation of private disputes and unfair and false allegations against individuals through these platforms is increasing. Many “keyboard warriors” think that the social media platforms allow “open slather” on their comments concerning others.
Recently, there has been confirmation that publication of defamatory material through social mediums will result in significant damages.
The recent decision of Gayed v Abdelmak [2020] VCC 1814, was a case involving the assessment of damages where the plaintiff was defamed in a series of six posts published by the defendant on the Facebook account of his wife in early 2018.
The publications
The publications related to a loan between the Plaintiff and defendant, and claimed that the Plaintiff:
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- had deceived the defendant and was asking the entire congregation at their Church for money;
- and his family were “thieves”;
- was a “scammer”, “thief”, “liar” and “a disgrace” and stated that “he owes everyone money”;
Of the six publications the subject of the claim, the First, Second, Third, Fourth and Sixth Publications were posted in the English language. The Fifth Publication was in Arabic and was a translation of the Fourth Publication.
The Defendant admitted that he had published, or caused to be published, each of the offending Facebook posts but initially alleged a number of defences, including justification and honest opinion.
He later conceded liability and abandoned his defences. The only matter in dispute was the quantum of damages to be awarded to the plaintiff.
Damages Awarded
The Court cited with approval, the principles relating to assessment of damages in defamation proceedings set out by Dixon J in Wilson v Bauer Media Pty Ltd & Anor:
(a) Damages should provide consolation for hurt to feelings, damage to reputation, and vindication of the plaintiff’s reputation;
(b) Damages ought to reflect the high value which the law places upon reputation;
(c) The gravity of the libel and the social standing of the parties are relevant to assessing the quantum of damages necessary to vindicate the plaintiff. The award must be sufficient to convince a bystander of the baselessness of the charge;
(d) There must be an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded (Section 34 of the Act);
(e) The extent of publication and the seriousness of the defamatory sting are pertinent considerations;
(f) In determining the damage done to a plaintiff’s reputation, the Court should also take into account the “grapevine” effect arising from the publication – a realistic recognition by the law that, by ordinary function of human nature, the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published;
(g) It is well accepted that injury to feelings may constitute a significant part of the harm sustained by a plaintiff;
(h) No award may be made for exemplary or punitive damages (by reason of s37 of the Act);
(i) Section 38 of the Act makes provision with respect to a number of factors giving rise to mitigation of damages including where the defendant has made an apology to the plaintiff about the publication of the defamatory matter.
The Court awarded the Plaintiff damages in the sum of $120,000, together with interest of $8,473.35 and costs fixed at $85,000.
Consolation, Reparation and Vindication
In arriving at the award, the Court reaffirmed that in defamation matters, there are three purposes for awarding damages in a defamation claim:
- Consolation for the personal distress and hurt caused to the plaintiff by the publications;
- Reparation for the harm done to the plaintiff’s personal and (if relevant) business reputation; and
- Vindication of the plaintiff’s reputation – the amount awarded is the minimum necessary to signal that vindication to the public.
“Grapevine effect”
In the particular religious and ethnic community to which the offending posts were made, there was a “grapevine effect”:
“I am satisfied in a relatively tight religious and cultural community such as the [particular Church] community of Melbourne, the “grapevine” effect arising from the publications would have been substantial. Members of the community who had read the posts or had them brought to their attention were high likely to discuss them or bring them to the attention of other members.”
The comments would extend to a plethora of sporting, cultural, political and community organisations, large and small, where members freely and openly discuss contentious matters between themselves, and sometimes criticise others.
This case illustrates that publication of defamatory material on social media platforms may result in significant damages being awarded and that care and restraint needs to be exercised in any commentary on contentious matters and criticism of individuals.
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We have previously assisted both plaintiffs and defendants in relation to defamation proceedings and if you have any concerns about defamation matters, please contact us.
