The recent District Court of South Australia decision in Johnston v Aldridge (No 2) [2018] SADC 72 (Johnston v Aldridge) has extended responsibility for defamatory comments on Facebook. The ruling found that former political candidate Mark Aldridge (Defendant) was responsible not only for the defamatory contents of his own Facebook posts but also for the defamatory comments of other Facebook users attached to the Facebook posts (Facebook Comments), and awarded Ben Johnston (Plaintiff) $100,000 in damages.
The defamation claim originated in a development dispute between the parties, which led to the Defendant publishing two Facebook Posts regarding the Plaintiff which carried imputations that defamed the Plaintiff’s character such as by calling him greedy and selfish. Many ‘followers’ of the Plaintiff commented on the Facebook posts, mirroring the sentiment of the posts with often vulgar language.
While there were a number of pleadings at issue in the case, this article focuses on the issue relating to liability for the Facebook Comments only.
Are Facebook Comments published by the author of the Facebook Post?
Bilateral Communication
The Defendant pleaded that he bears no liability for the publication of the Facebook Comments. This was on the basis that publication is a bilateral act where the publisher makes the relevant material available to be read by others, which is then read and comprehended by others.
However, importantly, participation in the publication process may be secondary [Dixon J, as he then was, in Lee v Wilson & McKinnon (1934) 51 CLR 276 at 288]. This includes situations where a website forum host acts as a secondary publisher [Duffy v Google (2015) 125 SASR 437, at 236 – 237].
The Court in Johnston v Aldridge found that by publishing the post online with an attached comments box, the defendant had provided such a forum for other individuals to add their comments to the Facebook post for others to read. The Court pointed out that as one of the Facebook posts was ‘liked’ over 9,000 and ‘shared’ almost 13,000, it was inherently probable that those that had liked and shared it would have read the post and some comments, thus completing required bilateral communication.
Liability in relation to the Facebook Comments
As summarised by Blue J in Duffy at [158], the elements which must be satisfied in order to prove defamation are:
- That the defendant published the relevant material;
- That the material was of or concerning the plaintiff;
- That the material carried the imputations pleaded; and
- That the material was defamatory of the plaintiff in that it was injurious of his reputation.
Whilst the Court found that a Facebook Comment read in isolation would be nothing more than ‘vulgar abuse’, the Facebook Comments read together were found to constitute defamatory material. This was because it was probable that an ordinary reader who read the original post and even a small selection of the comments would take the comments as adopting and emphasising the defamatory imputations carried by the post itself and so would think less of the plaintiff.
Awareness of defamatory material
However, because the Defendant was a secondary publisher of the Facebook Comments rather than a primary publisher, the Defendant would only be liable if:
- He knew that the defamatory material was within what he published; or
- He could, with reasonable diligence, have known of that the defamatory material was within what he published [Duffy, at 166 -169].
The Defendant in Johnston v Aldridge admitted to allowing his wife to monitor the post for inappropriate comments, revealing his awareness that the Facebook post would attract comments, particularly as the Defendant had nearly 6,000 followers. In the circumstances, it was inconceivable that the Defendant did not know there would be comments on the post and he had in fact told his wife that comments were streaming in.
Further:
- The Court concluded that the malicious nature of his Facebook post would lead the Defendant to recognise that it would attract comments expressing similar attitudes; and
- The Defendant posted a number of comments in response to the Facebook Comments, indicating his acknowledgment of the existence and nature of these Facebook Comments.
No control over Facebook Comments
The Defendant argued in his defence that he had no control over the actions of the authors of the Facebook Comments and that the Facebook Comments were so numerous that it would not be practical for him to remove them.
The Court did not view either argument as an adequate defence, stating that:
- As the author of the Facebook posts, the Defendant was responsible for monitoring the comments attached to them and removing the inappropriate ones accordingly; and
- Although there were thousands of Facebook Comments, there was nothing physically preventing the defendant from discovering the disparaging nature of at least some of them and removing them accordingly – volume could not itself be a shield.
Conclusion
The Defendant’s liability for secondary publication of the Facebook Comments did not require proof that the defendant had the ability to directly control the authors of the Facebook Comments or that they were complicit in some common purpose for these authors to publish their work. The Defendant had to establish that he could not, with reasonable diligence, have known about the defamatory material in the Facebook Comments.
This defence failed and the Defendant was found to have published the Facebook Comments and was liable for the defamatory material in the Facebook Comments.
Looking Ahead
The increasing pervasiveness of social media is driving a redesign of defamation law as more and more people find themselves publishing potentially libellous comments about others on the internet without complete awareness of the legal ramifications. Social media pages such as Facebook, Twitter and Instagram encourage the immediate publication of individual’s opinion – arguably even more so in comments sections than on the original posts.
Assuming that the approach of the South Australian District Court is followed, private citizens and small businesses of all kinds (and not just media companies) are at greater risk of being the defendant in defamation cases moving forward.
Both individuals and businesses will need to exercise greater diligence when it comes to monitoring interaction with their social media posts, particularly those with a large or very active social media following. And while this may be an extension of the monitoring businesses are already required to do for false and misleading statements relating to their products and services on their social media pages, this is a brave new world for individuals.
This article was written by Rebecca Lindhout, Special Counsel, Nupur Sachdev, Solicitor, and Sarah Romanous, Solicitor.