Member Article

In a landmark case in Australia that is a first of its kind (but undoubtedly will not be the last), damages have been awarded to New South Wales school teacher, Mrs Christine Mickle, for offensive and defamatory tweets and Facebook posts made by an ex-student of the school where she taught.  The student, Andrew Farley, apparently held a grudge against Mrs Mickle for playing what he perceived as a role in the removal of his father from the position of head music teacher at the school.  The New South Wales District Court found that, in fact, his father had stepped down due to health and personal reasons unrelated to Mrs Mickle's appointment as his replacement. After numerous attempts by Mrs Mickle and her legal advisors to elicit an apology, Mr Farley finally deleted the offensive comments, apologised and deleted the Twitter account.  Mr Farley, however, then established a new Twitter account posing as a fictitious character, Drew Hampton. Mrs Mickle instigated proceedings against Mr Farley in fear that damage to her reputation had already occurred and that he would continue with the abuse.

Judge Michael Elkaim awarded Mrs Mickle $105,000 in damages, consisting of:

• $85,000 in compensatory damages for the 'devastating' effect the statements had on her reputation in the local community, especially in light of the grapevine effect of social media which meant that the reputational damage was likely to be substantial and possibly permanent; and

• $20,000 in aggravated damages for the manner in which Mr Farley conducted himself after he was contacted by Mrs Mickle's lawyers and his continued attempt to lead a defence of truth at trial.

This is not the only case in the pipeline in Australia relating to alleged defamation through social media. Lynton Crosby and Mark Textor's case against former Federal Labor minister Mike Kelly is proceeding to trial after the Federal Court refused to strike out the defences of truth, contextual truth and qualified privilege during an interlocutory proceeding held in December 2013. 

Other jurisdictions have also been dealing with keyboard warriors defaming individuals in recent times. 

In May 2012, the United Kingdom High Court (UKHC) awarded £90,000 in damages and £400,000 in legal costs to former New Zealand cricket captain Chris Cairns after false allegations that he was involved in match fixing were made on Twitter by Lalit Modi, the former chairman of the Indian Premier League (the Twenty20 franchise in India). 

In a 2013 decision, the UKHC found that a tweet relating to false accusations of sexual abuse made by the wife of the Speaker of the House of Commons, Sally Bercow defamed (in the UK, libelled) Lord Robert Alistair McAlpine the former Deputy Chairman and Party Treasurer of the Conservative Party. While the case was settled before damages were determined and awarded, it maintains a common theme in the jurisprudence around the world that defamation is defamation whether it is in 1000 words or 140 characters. 

Across the other side of the world in the United States, in early 2011 celebrity model Courtney Love settled a dispute with Dawn Simorangkir, a fashion designer, over a twitter tirade in relation to a payment for clothing. The settlement figure was estimated to be a handsome $430,000. Since this settlement, Ms Love's alleged libelous tweets have been subject to more litigation where they were made in relation to a former legal advisor which, this time, proceeded to trial and she was successful in defending. 

The lesson to take away from these cases is that, despite the almost limitless opportunities social media provides for business, it is important that businesses and individuals alike are aware of the pitfalls and ensure that their tweets and posts are truthful and neither abusive nor offensive. Even though the extent of the audience for content posted on social media is very difficult to determine, courts are now well aware of the grapevine effect social media can have in spreading damage to someone's reputation and judges appear more than willing to award damages where appropriate. 

If a complaint is made against you or your organisation, make sure you take the likelihood of any court proceedings, as well as the complaint seriously and respond in a courteous and professional manner to limit any aggravated damages that may arise from subsequent conduct. 

Remember, most social media problems can be nipped in the bud through non-legal means before anyone has to pay a dollar, let alone 105,000 of them.