The recent South Australian decision of Johnston v Aldridge (No 2) has expanded social media users’ liability for defamatory comments to those posted by others on pages that they control. That is, the Court held that a person is liable not only for their own posts, but also for posts made in response, even though those responses were not written by them.

Background

Defamation is the publication of material carrying meanings that are damaging to the reputation of another. Publication occurs where a person participates in the communication of the relevant material either as a primary or secondary participant.

The test for whether the published material carries the meaning alleged and whether it is defamatory is objective and assesses what ordinary reasonable people would understand by the matter complained of. In making that assessment, it is necessary to bear in mind that ordinary men and women have different temperaments and outlooks, degrees of education and life experience.

The ordinary reasonable person is not a lawyer who examines the relevant publication over-enthusiastically but someone who views the publication casually and is prone to a degree of loose thinking.

The test is not what the allegedly defamatory words or images in fact say or depict but what a judge could reasonably think they convey to the ordinary reasonable person; and it is often a matter of first impression.

The ordinary reasonable person may be taken to “read between the lines in the light of his general knowledge and experience of worldly affairs”, but such a person also draws implications much more freely than a lawyer, especially derogatory implications, and considers emphasis given by conspicuous headlines.

As summarised by Blue J in in the 2015 Supreme Court of South Australia decision of Duffy v Google the elements which must be satisfied 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.

The Facts

Both Johnston and Aldridge were greengrocers and involved in a ‘vegetable war’ of competing businesses. The plaintiff (Johnston) brought a defamation action against the defendant (Aldridge) in respect of a Facebook post published on 25 November 2015 which was liked 12,586 times, shared 13,040 times and received more than 4,500 comments.

Mr Johnston alleged that the post ‘brought him into ridicule and contempt, has had his character and reputation injured and has caused him to suffer hurt and embarrassment’.  Johnston succeeded on each pleaded imputation and on each evidentiary issue in contention.

Johnson was ultimately awarded damages in the amount of $100,000.

The Court held that whilst a Facebook Comment read in isolation would be nothing more than ‘vulgar abuse’, the Facebook comments made in response to Aldridge’s post read together were defamatory. This was because it was probable that an ordinary reader who read Aldridge’s 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 Johnston.

Although Aldridge argued that he had no control over what people published in response to his original post, and the 4,500 odd responses were so numerous that it would not have been practical for him to remove them, the Court did not accept either argument, observing that Aldridge was responsible for monitoring the responsive comments to his post and there was nothing stopping him from deleting them.

This decision expands the scope of what is secondary publication in the law of defamation, by extending liability for secondary publication to comments made in response to a Facebook post, and not merely posts made by the primary author.

If this decision is followed (as it is likely to be), individuals and businesses face a greater risk of being named as defendants in future defamation actions.

The Court’s findings highlight the need to exercise extreme diligence when considering the implications of posting about others on social media, especially where such posts are made with the intent of soliciting responsive comments.