Clifford Gouldson Lawyers

Defamation online: But I didn't post the comment, Your Honour!

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24/08/2018

In January 2016, we wrote about four cases involving allegedly defamatory online statements.  
 
A recent decision of the South Australian District Court demonstrates just how far defamation law can reach in Australia.  Even to the point where comments not made by you personally can still land you in hot water.
 
Background
 
In Johnston v Aldridge*, a pop-up farmers market was found liable for defamatory comments about Mr Johnston on posts to its Facebook page.  Interestingly, the comments were not made by a representative of the market, but by other Facebook users.
 
The Plaintiff, Mr Johnston, operated fruit and vegetable shops within South Australia. The Defendant, Mr Aldridge, operated the pop-up farmers market and successfully sought the local Council’s approval to relocate the market.
 
Mr Johnston objected to the new location and successfully appealed the Council’s decision, such that Mr Aldridge was no longer permitted to relocate his market.
 
During the objection process and appeal, Mr Aldridge posted to Facebook about the dispute twice.  Numerous third parties commented on both posts.
 
Mr Johnston pleaded that these third party comments implied:

  1. he was selfish;
  2. he was of contemptible character; and 
  3. he had made, or was involved in, threats to rape or kill.
Amongst other things, Mr Aldridge pleaded in defence that he carried no responsibility for the comments made by other Facebook users on the posts.
 
Judgment
 
Justice Brebner:

  1. found that the Facebook posts were defamatory;
  2. decided that Mr Aldridge, by publishing the posts, "must be taken to have accepted the responsibility to monitor (the comments) and remove those which were inappropriate for suffer the consequences of the inconvenience involved";**
  3. ordered Mr Aldridge to pay $100,000 in damages to Mr Johnston, including a portion of aggravated damages.

Lesson
 
If your business uses Facebook, it is important to set aside time to review any comments that are made on your posts and delete those which may cause the public to think less of another individual or business.
 
Please note that it is very likely the same responsibility will extend to comments published on business websites or elsewhere online where an administrator has the ability to remove such comments.
 
If you believe that defamatory comments have been made about you or your business online, or require guidance about how to establish and monitor social media platforms, please do not hesitate to contact our Litigation + Dispute Resolution Team.


*[2018] SADC 68.

**Johnston v Aldridge [2018] SADC 68 at [185].

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