Social media and defamation law (watermarked)

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4
Social Media and
Defamation Law
Patrick George
INTRODUCTION
4.1 Defamation laws exist in most societies around the world and they exist
for a very basic reason. They protect a fundamental human right, that no one
shall be subjected to unlawful attacks on honour and reputation.1
4.2 We belong to the society in which we are born and in which we live. Our
right to belong and the esteem in which we are held within society is dependent
upon our reputations, earnt by a social assessment of who we are and what we do.
4.3 The estimation that others give us by way of reputation is communicated
and reviewed and reassessed over time. This assessment takes place through
any and all means of communication available. ‘Social media’ is now one
of those means of communication. It is faster, more accessible and more
widely available than any other means of communication which people have
previously experienced. It therefore has the capacity to impact upon our
reputations, positively and negatively, in a most signiﬁcant way.
4.4 An accusation which damages a reputation, unjustiﬁably or inexcusably,
will breach the law of defamation. This law is now partly statutory and partly
common law in Australia, governed by uniform defamation legislation in
each state and territory. In most jurisdictions, it is known as the Defamation
Act 2005.2
1. International Covenant on Civil and Political Rights 1966 Art 17.
2. References to the Defamation Act 2005 throughout this chapter are to the uniform
laws in each state and territory by that title, the exceptions being Civil Law (Wrongs)
Act 2002 (ACT) and the Defamation Act 2006 (NT).
CopyrightLexisNexis2015

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4.5
4.5 Defamation is an age-old tort. From the time of the printing press to
today with Twitter and Facebook, the law of defamation has applied to all
kinds of communications over the centuries.
4.6 The common law came to distinguish between defamatory statements
which were made orally and statements which were made in writing. Those
which were oral, known as slander, required special rules because of the
potential multiplicity of actions that could be brought from the spoken word
and the uncertainty of proof of what words were said. Accordingly, it was
necessary to show actual loss arising from the oral publication, except in
certain specific categories of defamation where damage to reputation was
presumed.
4.7 By comparison, defamatory statements made in writing, known as
libel, were considered inherently damaging to reputation because of their
permanence. The distinction between slander and libel no longer exists under
Australian law.3
The relevance of the distinction is that there is a multiplicity
of publications in social media just like there is in everyday conversation but
social media statements are made electronically ‘in writing’ and are therefore
‘permanent.’ The ‘conversation’ by way of social media is recorded and
endures, available to scrutiny and review in electronic form, and does not
disappear as does the spoken word.
4.8 In an action for defamation, there is no necessity for a plaintiff to show
actual damage, as damage is presumed by the publication of a defamatory
statement. Complex questions arise from the use of social media as to when
and where the publication is made and by whom it is deemed to be understood.
These are not matters that users of social media will normally have in mind.
Instead, they feel liberated to speak their minds as they please.
4.9 So free and uninhibited has the use of social media become that for all
its benefits in providing freedom of speech it sometimes resembles the ‘Wild
West’ of publishing, with no apparent laws to restrict it. Its impact, when used
to damage another, can be savage and immeasurably harmful.
4.10 A single mother, Nicola Brookes, showed her support on Facebook
to a former contestant on the television program X Factor in the UK after he
received hate mail on his Facebook page. She posted a message ‘Keep your
chin up Frankie, they’ll move on to someone else soon.’ Unfortunately, they
did, and moved on to her. She became the target of ‘vicious and depraved’
abuse. A fake Facebook profile account was set up in her name using her
picture to post explicit comments and suggesting she was a paedophile. As a
result, she went to court and obtained an order requiring Facebook to disclose
the identities of those persons for defamation proceedings.
3. Defamation Act 2005 s 7(1).

SOCIAL MEDIA AND DEFAMATION LAW 4.16
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4.11 The sheer nastiness of trolling, the cowardice of anonymity and
the frenzied attacks of the following herd are as unacceptable to ordinary
decent people in society as much as they are unlawful. Yet those with the
willingness to hurt others in this way have gained an extremely powerful tool
through social media. What is now said in public, probably lurked before in
private conversation or went unsaid in people’s private thoughts. The public
outpouring of malice by means of social media is an antisocial phenomenon
of these times.
4.12 How then does defamation law apply to restrict it?
OVERVIEW OF DEFAMATION LAW
4.13 Defamation law provides a cause of action through the courts to
compensate a person for the damage suffered by reason of a published attack
on reputation. Through its long history, the law has served a peaceful purpose
in providing a remedy to a person who has been defamed when, before such
law existed or despite such law existing, people took matters into their own
hands to inflict revenge upon wrongdoers. This led to lawlessness, violence
and bloodshed. Duels were often used to satisfy the slur on one’s honour and
vendettas were passed down for generations.
4.14 Damages are awarded for a breach of the defamation law and in
Australia, those damages for non-economic loss are capped by legislation;4
in
2014, at the sum of $366,000 (and adjusted each year for inflation).
4.15 Defamation laws have an inhibiting effect upon the free flow of
communication and freedom of speech. The recognition of the importance
of this freedom to a democratic society is of more recent origin than the
existence of the defamation laws. Freedom of speech is accepted as a
fundamental human right; that is, that everyone should have the right to
exercise freedom of thought and freedom of expression.5
4.16 The suppression by governments of criticism and dissent is an essential
means of controlling the people and exercising power. Dictatorships thrive on
the absence of dissent, enforced through censorship and restraint of those
who might wish to express opposition. The Nazi regime was the perfect
example, not only violently suppressing dissent but controlling the media
in pursuit of its goals. Western democracies have also witnessed the harsh
control of criticism by those who exercise power and the defamation laws
have been used as a weapon for that purpose. It is in that context that freedom
of speech of political and government discussion has been seen in recent
times as deserving of particular protection.
4. Defamation Act 2005 s 35(1).
5. International Covenant on Civil and Political Rights 1966, Art 19(2).

SOCIAL MEDIA AND THE LAW4.17
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4.17 Defences have been developed in defamation law to provide protection
of freedom of speech. There is an absolute privilege to publish statements in
parliament or in court. There is a qualified privilege to publish statements of
‘political or government discussion’6
or where the occasion is protected for
the ‘common convenience and welfare of society’.7
4.18 However, these defences conflict with the protection of freedom from
attack on reputation. It is therefore expressly recognised that the exercise of
freedom of speech carries with it special duties and responsibilities and may
be subject to certain restrictions as are necessary for the respect of the rights
or reputations of others.8
The law seeks to strike a balance between these two
freedoms or human rights underlying the defamation law.
4.19 One particular consequence of this balance is that courts are reluctant
to grant interim injunctions to restrain defamatory publications before they
are published. In the usual course, an award of damages is considered to be
an adequate remedy after publication has taken place.
DEFAMATION AND CAUSE OF ACTION
4.20 The cause of action for defamation requires the proof of three
elements — publication, identification and defamatory meaning. It will also
be necessary for a plaintiff to identify the defendant and bring the proceedings
within 12 months from the date of publication.9
Publication
4.21 It is said that publication is the foundation of the cause of action for
defamation.10
From publication, the following questions arise:
(a) what form did the publication take — oral, written, conduct?
(b) to whom was it published and to how many?
(c) where was it published?
(d) when was it published and for how long?
(e) about whom was it published?
6. Lange v Australian Broadcasting Corp (1997) 189 CLR 520; 145 ALR 96; [1997] HCA 25.
7. Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; 204 ALR 193;
[2004] HCA 5 at [9].
8. International Covenant on Civil and Political Rights 1966 Art 19(3).
9. Extensions of the limitation period are granted in certain circumstances: Limitation
Act 1969 (NSW) ss 14B, 56A, and equivalent in other States and Territories.
10. Powell v Gelston [1916] 2KB 615 at 619; Lee v Wilson and Mackinnon (1934) 51 CLR 276
at 287; [1935] ALR 51.

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(f) by whom was it published?
(g) what did the ordinary reasonable person understand the publication to
mean?
4.22 The central issue, of course, in all of these questions is publication.
It will be seen that these questions are also centrally relevant to the defences
and remedies.
Form
4.23 Social media being ‘social’ is a form of publication which satisfies the
essential element of the cause of action for defamation. It is electronic in
form and the publication generally remains available online once posted or
uploaded for viewing or reading.
4.24 Social media, and the internet generally, is not confined to the written
form. It can contain pictures, video and sound. This means that social media is
not just read but can be seen and heard. The electronic form means that it can
be retained indefinitely by being retained online. Social media also makes use
of symbols, abbreviations, acronyms, ‘emoticons’, which are typed symbols
simulating a facial expression or feeling such as :).
4.25 Another relevant form used on social media and the internet generally
is the hyperlink which enables cross-referencing of matter. Following the
hyperlink, a reader can link from one web page to another. This is often used
in the social media context by linking news pages to a tweet or message. At
law, this link may be taken as a single publication or together as a combination
of separate publications.11
The proximity of two articles in a search result
does not of itself enable complaint to be made that they were read together,
as they would be downloaded separately to read the content.12
4.26 One further common form of publication is the republication of
someone else’s publication. The Twitter and Facebook websites respectively
permit users to ‘Retweet’ or ‘Share’ other users’ publications.
4.27 The ability to store or retain the form of the publication has
consequences in terms of liability as to whether the recipient can go back
and reread the publication to have a different or better understanding to the
initial impression gained and also to the time at which the publication is read
or understood.
4.28 This issue is complicated by popular platforms like Snapchat which
allow users to set the time their publication, known as a Snap, can be viewed
by a reader (between 1–10 seconds) before it is hidden from the reader’s
device and deleted from the Snapchat server. Users of Snapshot generally
11. Kermode v Fairfax Media Publications Pty Ltd [2009] NSWSC 1263 at [24].
12. Waterhouse v The Age Co Ltd [2011] NSWSC 159 at [78]–[80].

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tend to make permanent records of controversial Snaps by taking a screen
shot and saving it to their device. It is of course not possible for a user to
ascertain whether this has occurred.
To whom and how many
4.29 Publication at law requires the matter to be published to at least one
person other than the plaintiff. The reason for this is that the law protects a
person’s reputation in the eyes of others, not in the plaintiff’s own perception
of it.13
4.30 Publication involves the comprehension of the matter by a third party.14
That is the moment when damage to reputation occurs. It involves a bilateral
act, where in the case of social media the defendant uploads the publication
and the recipients read it and comprehend the meaning of it. Complex
questions arise as to when and where such publication occurs. Damage is
presumed whenever the act of publication occurs, even if the recipients had
no prior knowledge of the plaintiff or his or her reputation.15
4.31 The uploading of any matter on social media may in the normal
course be expected to be read by one person other than the person attacked.
However, the law may not necessarily draw an inference from the use of social
media that such a publication occurs and it may be necessary for a plaintiff to
show it was read by at least one other person.16
4.32 If the matter is not capable of being understood by a recipient, there is
no communication of it and no publication. For example, matter in a foreign
language may not be understood by the recipients, and no damage results.
However, in one case, material was uploaded onto the website of an Australian
newspaper in the Italian language. The court inferred that publication had
taken place to a signiﬁcant number of people because of evidence that ‘many’
people had contacted the plaintiffs about it after the article was made available.17
4.33 Social networking websites, such as Twitter and Facebook, are open to
any member of the public to establish accounts to use the formats of those
sites, subject to agreement to the website owners’ terms and conditions.
4.34 Social media sites such as these are different from other forms of
websites which might be available to access information or be used for
education or research. Social media sites involve the ability of users to
exchange information and communicate to one and many at the same time
and in any number of locations.
13. Pulman v Hill & Co Ltd [1891] 1 QB 524 at 527; Dow Jones & Co Inc v Gutnick (2002)
210 CLR 575; 194 ALR 433 at [26], [124].
14. Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; 194 ALR 433 at [27].
15. Jameel v Dow Jones Inc [2005] EWCA Civ 75 at [25]–[29].
16. Restifa v Pallotta [2009] NSWSC 958 at [26]–[29].
17. Above at [26]–[29].

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4.35 Twitter and Facebook are both free social networking sites. Tweets are
publicly visible by default. The vast majority of Twitter accounts are set to
tweet publicly visible content and because the tweets are publicly visible, there
is no limit to the number of persons who can view them.
4.36 Content shared on Facebook is also public by default. However,
account holders can set their privacy settings to different levels of privacy,
with the least restricted setting available to the public and the most restricted
level to ‘friends only’.
4.37 Regardless of the privacy settings, any recipient of a tweet or post may
‘copy paste’ content to others or may take a screen shot of the content and
send the image by any option available on iPhone, iPad or personal computer.
This exercise can easily be carried out in less than 60 seconds.
4.38 A tweet on Twitter or a post on Facebook is automatically published
to the number of followers and friends respectively that the account holder
has and it will then appear in the newsfeeds of those account holders. Those
followers or friends may republish the original content to their own followers
and friends and this will increase the extent of publication instantly and
cumulatively.
4.39 Once a matter is placed on these social media sites, there is no ability
to recall or shut down further publication or dissemination by others to
a wider audience. To the extent that followers reply to tweets on Twitter,
each of those person’s replies would be readable by their followers and
this reflects the ‘expanding universe’ of communication on Twitter which
cannot be defined as to extent or location once published and reflects the
capacity of tweets to ‘go viral’ in a short space of time. Facebook is similar
depending upon the privacy settings. Once statements are made on social
media websites, it should be assumed that they can and often will be seen in
any place by anyone because of the public nature of those websites. There is
no ability to control the extent of the audience to whom matter is published
or their location.
4.40 In England, defamation proceedings were issued by a school governor
against a mother who had posted comments to her 300 Facebook friends
behind a blocked Facebook profile of ‘friends only’. They were then reposted
by the mother’s sister whose profile was public which meant that they could
be read by anyone.18
4.41 By comparison in the United States, celebrity Courtney Love was sued
by her former lawyer for a tweet in which she suggested the lawyer had been
‘bought off’. The media labelled this libel claim as ‘Twibel’. Ms Love argued
that she did not intend to send the tweet worldwide but only to two recipients.
18. David Churchill, ‘Mother faces paying £20,000 damages over Facebook “libel”’,
London Evening Standard, 7 February 2014.

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She also said that she did not know that the information was untrue when she
published it. The jury accepted Ms Love’s argument finding that she did not
act recklessly. In Australia, this tweet would have been defamatory regardless
of Ms Love’s intention as to whom it was published and whether she knew it
was untrue or not. A defendant would need to establish a defence of qualified
privilege in order to avoid liability.
4.42 The extent to which it may be inferred that the matter has been published
will be identifiable on social media from the number of followers on Twitter
or friends on Facebook. It may be possible to identify each and every recipient
from documents obtained on discovery from the defendant or obtained by
subpoena from intermediaries. It is usual practice with mass media publications
for there to be an estimate of the audience from distribution or circulation
figures. As the technical ability of social media websites continues to be
enhanced, it is possible that intermediaries may be able to provide information
not only as to the identity of each recipient who accessed the matter but also
when they did so, the time spent in reading it and whether they forwarded
the publication to others through a mechanism provided by the intermediary.
4.43 Limited information regarding publication may already be available
where the website provides a particular mechanism to share the publication
with others. For example, the ‘Share’ mechanism on Facebook records the
number of times a post is shared by a user.
4.44 Where it is not possible to identify precisely the identity or number of
recipients of the publication, the law recognises that defamatory material may
be repeated or republished to others through the ‘grapevine effect’ so that the
damage is caused by the ongoing publication to a much wider audience than
those to whom it was initially published.19
4.45 If a communication is intercepted from a private setting, such as by
computer hackers, not only is the hacking a criminal offence,20
the author may
not be liable for the unauthorised or unintentional publication made by those
hackers.21
Where
4.46 Social media may be published anywhere in the world depending upon
the geographical location of the recipients. As each receipt of a defamatory
publication is a separate publication and therefore constitutes a separate cause
of action, a defendant may be sued in any number of jurisdictions.
19. Jones v Sutton (2004) 61 NSWLR 614; [2004] NSWCA 439 at [60]; Ley v Hamilton (1935)
153 LT 384; Palmer Bruyn v Parsons (2001) 208 CLR 388; 185 ALR 280; [2001] HCA 69
at [88].
20. Telecommunications (Interception and Access) Act 1979 (Cth) s 7.
21. Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 594–595;
141 ALR 1.

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4.47 In Dow Jones & Co Inc v Gutnick,22
it was argued that publication
occurs when and where the matter is uploaded (in that case in New Jersey,
United States) and not when and where it is downloaded by readers around
the world. Dow Jones published The Wall Street Journal newspaper and Barron’s
Magazine. It operated a news site by subscription on the internet. It uploaded
to its website, Barron’s Online, an article under the headline ‘Unholy Gains’
which made reference to Joseph Gutnick.
4.48 Gutnick, as the plaintiff, restricted his complaint to the publication
to readers in Victoria and therefore brought his cause of action in Victoria
claiming damages for the defamation within that state only.
4.49 The High Court held that the cause of action is located at the place
where the damage to reputation occurs and in relation to the internet, that is
where the recipient downloads the material because that is where the damage
to reputation is done.23
As a result, the place of publication was Victoria
and that was the jurisdiction in which Gutnick sued for damages. It was his
reputation in that state which he sought to vindicate.
4.50 Dow Jones argued that this would give rise to multiplicity of actions
in each and every state in which the publication was downloaded and
that was every country from Afghanistan to Zimbabwe. The High Court
considered that those uploading material on the internet do so knowing that
the information they make available is available to all and sundry without
any geographic restriction. However, in all except the most unusual cases,
identifying the person about whom the material was published, will readily
identify the defamation law to which that person may resort.24
4.51 The High Court said that, if in a case an issue arises as to whether
an Australian Court is clearly an inappropriate forum, a very signiﬁcant
consideration will be whether that court can determine the whole controversy
and, if it cannot, whether the whole controversy can be determined by a
court of another jurisdiction. Importantly, the place of the tort, the parties’
connection with one jurisdiction or another, and the publisher’s choice to
place matter on the internet are relevant matters to the court’s exercise of
discretion as to whether the chosen forum is appropriate or not.25
4.52 A relevant matter to the place where damage occurs is where the
plaintiff ﬁrst learned of the publication and suffered hurt to feelings in that
place; this may be a different place to where it was received and understood.26
22. (2002) 210 CLR 575.
24. Above at [54].
25. See also Global Partners Fund Ltd v Babcock & Brown Ltd (In Liq) (2010) 267 ALR 144;
[2010] NSWSC 270; Barach v University of New South Wales [2011] NSWSC 431 at [63]–[72];
King v Lewis [2004] All ER (D) 234 (Oct); [2004] EWCA Civ 1329 at [35]–[36].
26. Barach v University of New South Wales [2011] NSWSC 431 at [51].

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4.53 The Defamation Act 2005 applies the substantive law of the state or
territory in which the matter was published within Australia. If the matter is
a multi-state publication, the Act applies the substantive law with which the
harm caused by publication has its closest connection.27
It may be necessary
to apply foreign law where the publication occurs in a foreign jurisdiction and
the appropriate forum is within Australia.28
When and for how long
4.54 It follows that the date on which the matter was published for the
purposes of the cause of action is the date on which the publication is
comprehended by the recipient. To the extent that it continues to be made
available over a period of time, such as on the internet, publication is
continuing whenever it is accessed and read.
4.55 Each publication gives rise to a separate cause of action.29
If a later
publication occurs outside the limitation period (12 months from the date
of publication)30
for a cause of action arising from the original publication,
a plaintiff may still bring an action for the damage suffered by the later
publication. In Duke of Brunswick v Harmer31
a London newspaper, the Weekly
Dispatch, had been published in 1830 critical of the exiled German ruler
Karl II, Duke of Brunswick. Living in Paris 17 years later, the Duke sent
his valet to read a copy in the British Museum and obtain a copy from the
publisher, Harmer. The first publication was held to be statute barred but the
second publication was not. This technical publication would today be likely
to be met with a defence of triviality. In the UK, it would be statute barred
by the single publication rule operating for 12 months from the date of first
publication to the public.32
About whom
4.56 The plaintiff must prove that he or she was identified in the matter
published. It must be shown that the defendant published the defamatory
material ‘about the plaintiff’ or ‘of and concerning’ the plaintiff.33
This is easily
done where the plaintiff is referred to by name or title but where there is no
such reference, it is a question about whom the ordinary reasonable recipient
27. Section 11.
28. Barach v University of New South Wales [2011] NSWSC 431 at [73]–[81].
30. Limitation Act 1969 (NSW) s 14B.
31. (1849) 14 QB 185; 117 ER 75.
32. Defamation Act 2013 (UK) s 8.
33. Sadgrove v Hole [1901] 2KB 1 at 4; Universal Communication Network Inc v Chinese Media
Group (Aust) Pty Ltd (2008) Aust Torts Reports ¶81–932; [2008] NSWCA 1 at [42].

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of the publication understood the matter to refer. It is the general impression
which ordinary reasonable recipients would have obtained without any need
on their part to formulate reasons for that impression.34
The primary test is
that the recipient act reasonably being fair-minded without being morbid or
suspicious.35
4.57 The defendant’s actual intention whether to refer to the plaintiff or not,
or whether the defendant even knew about the plaintiff, is not relevant.36
In
certain circumstances, if the publication does not refer by name or description
to the plaintiff, the plaintiff may be able to show that the matter was published
to persons who had knowledge of his or her identity as a result of knowledge
of special facts.37
4.58 Any living person may sue for defamation. Corporations generally
cannot sue for defamation in Australia unless they are exempted under the
Defamation Act 2005.38
A small business company which employs fewer than
10 persons and is not related to another corporation can sue. Not-for-profit
corporations can also sue. The directors of corporations unable to sue may
bring an action in their own name, or the corporation may sue for injurious
falsehood. It is also possible for groups to sue; for example, in NSW a class of
28 students sued a newspaper for an article ‘The Class We Failed’39
which was
found to be defamatory of the whole class by suggesting that the class had
failed the Higher School Certificate.40
By whom
Publisher
4.59 Each person who publishes or participates in the publication of
defamatory matter may be liable. In traditional media cases, the publication
may be made jointly by a number of defendants where, for example, the author,
editor, newspaper owner, printer and distributor participate in the production
of the newspaper. Each is jointly and severally liable for the publication.41
34. Morgan v Odhams Press Ltd [1971] 2 All ER 1156; [1971] 1 WLR 1239 at 1244, 1245.
35. Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 371–373.
36. Jones v E Hulton & Co (1909) 2KB 444 at 454; Lloyd v David Syme & Co Ltd (1985)
3 NSWLR 728 at 734; [1986] AC 350; (1985) 63 ALR 83.
37. David Syme & Co v Canavan (1918) 25 CLR 234 at 238; (1918) 24 ALR 275; [1918]
HCA 50.
38. Section 9(1).
39. ‘The Class We Failed’, Daily Telegraph, Sydney, 8 January 1997.
40. Students of the 1996 High School Certificate class at Mount Druitt High School
sued the Daily Telegraph over a front page article on 8 January 1997. The newspaper
apologised and settled for damages out of court.
41. Webb v Bloch (1928) 41 CLR 331 at 363–365; 2 ALJR 282; Habib v Radio 2UE Sydney
Pty Ltd [2009] NSWCA 231 at [121].

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An employer is liable for the publication by its employee provided the
publication was authorised or made in the course of employment.42
4.60 Participation in the publication will require proof of more than just
mere knowledge on the part of the defendant of the existence of the statement
and the opportunity to remove it, for example, from the defendant’s website
or social media site. The plaintiff must establish that the defendant consented
to, or approved of, or adopted, or promoted, or in some way ratified, or in one
way or another accepted responsibility for the continued publication of that
statement (once it came to the defendant’s knowledge).43
4.61 Where a person contributes material to a publication but has no
control over the publishing process, the person will not ordinarily be liable as
a publisher unless he or she has assented to its final form.44
4.62 A person may be liable for the repetition or republication of the
original publication by another. The original publisher may be liable for
whatever form the republication takes and the damages which flow from such
republication.45
It is necessary to prove that the original publisher authorised
or intended that the republication take place or that the republication was
the natural and probable consequence of the original publication.46
This is
essentially a question of causation, namely whether the republication by a
third party was the foreseeable consequence of the original publication.47
Republisher
4.63 In addition, the person who repeats or republishes defamatory matter
published by another person may be liable as if the person was the original
publisher.48
Liability does not necessarily depend upon whether the person
approved, reaffirmed or endorsed the original publication.
4.64 It is common in the use of social media for the matter to be republished
and indeed go ‘viral’ by people retweeting or sharing material which they
find funny or of interest. Gossip and rumour tend to spread far and wide.
Social media platforms provide specific mechanisms to enable content to be
42. Citizens’ Life Assurance Co Ltd v Brown [1904] AC 423 at 428; New South Wales Country
Press Co-Operative Co Ltd v Stewart (1911) 12 CLR 481; 17 ALR 554.
43. Urbanchich v Drummoyne Municipal Council (1988) A Def R 50–035; (1991) Australian
Torts Reports 81-127; Bishop v New South Wales [2000] NSWSC 1042.
44. Dank v Whittaker (No 1) [2013] NSWSC 1062 at [26].
45. Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [123].
46. Speight v Gosnay (1891) 55 JP 501; 60 LJQB 231; 7 TLR 239; Sims v Wran (1984)
1 NSWLR 317 at 320.
47. Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [124]–[125].
48. John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485; [2005] NSWCA 60
at [91]; Flood v Times Newspapers Ltd [2012] All ER (D) 153 (Mar); [2012] UKSC 11;
[2012] 2 AC 273; Lord McAlpine v Bercow [2013] EWHC 1342 at [44].

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disseminated as easily and as quickly as possible to as wide a geographical
audience as possible. Cutting and pasting material is also a popular feature of
the use of social media.
4.65 It follows that an original publisher on social media would ordinarily
foresee that the material placed on line may be republished and that it is the
natural and probable consequence of doing so. The original publisher can
therefore be sued along with those who participate in the republication.
A good example is the case of Sally Bercow49
who tweeted ‘Why is Lord
McAlpine trending? *
innocent face*
’. She was sued by Lord McAlpine for
repeating the accusation published in the traditional media, which in fact was
the reason his name was trending on Twitter. She was held liable based on the
repetition rule that where a defendant repeats a defamatory allegation made
by another, he or she is treated as if he or she made the allegation themself,
even if he or she attempts to distance themselves from the allegation.50
Anonymity
4.66 Social media has commonly seen the use of anonymity or pseudonyms
to disguise the true identity of the person publishing. Where the identity of
the publisher is not known, it may be necessary to apply to the court for
preliminary discovery.
4.67 It is possible to trace the true identity of a person through the author’s
‘set of identifiers’ used online. In Applause Store Productions Ltd v Raphael,51
the
defendant had set up a false Facebook profile in the name of the plaintiff,
Matthew Firsht. Linked to the profile was a hyperlink ‘Has Matthew Firsht
lied to you?’. Mr Firsht initially requested Facebook to take down the false
profile which it did. He then sought an order from the court against Facebook
for disclosure of the registration data provided by the user responsible for
creating the false material, including email addresses, and the IP’s addresses of
all computers used to access Facebook by the owner of those email addresses.
The basis of this application was a Norwich Pharmacal order.52
Facebook
produced evidence in relation to the profiles which showed that there were two
computers that used the IP address, the defendant’s desktop computer and a
laptop computer belonging to the defendant’s girlfriend which the defendant
often used. Both computers used a wireless router to connect to the internet
and the router employed the IP address which Facebook disclosed pursuant
to the order.
49. Lord McAlpine v Bercow [2013] EWHC 1342.
50. Flood v Times Newspapers Ltd [2012] All ER (D) 153 (Mar); [2012] UKSC 11; [2012] 2
AC 273 at [5].
51. [2008] All ER (D) 321 (Jul); [2008] EWHC 1781 (QB).
52. Norwich Pharmacal Co v Commissioners of Customs and Excise [1974] AC 133; [1973] 2 All
ER 943; [1973] 3 WLR 164.

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4.68 However, the defendant denied that he was responsible for posting
the false profile on Facebook. He claimed in his evidence that a complete
and random stranger visited his flat, went into his study and started using his
computer without his permission over a period of about an hour without
being seen. The stranger, he claimed, created a false and hurtful Facebook
profile about Mr Firsht, someone whom the defendant knew well and had
fallen out with which contained private information about Mr Firsht and
which few people, apart from the defendant, would have known. The court
rejected the defendant’s evidence as ‘utterly implausible’.53
4.69 An application for preliminary discovery can be made under specific
court rules such as the Uniform Civil Procedure Rules 2005 (NSW) r 5.2 which
enables preliminary discovery to be ordered by the court for disclosure of the
identity or whereabouts of a source for a defamatory publication. The court
has discretion to refuse to make an order for disclosure unless it is shown to
be necessary in the interests of justice.54
4.70 In some cases, it may be advisable for the plaintiff to make an application
for a protection order of anonymity because the particular publication is so
damaging that the public right of access to the court would be thwarted if the
plaintiff’s name was known.55
4.71 The consequences of not doing so can be seen in a case where
the plaintiff applied to the court ex parte and did not seek an order for
anonymity.56
He sought orders for the immediate removal from YouTube of
video footage which was defamatory of him as well as any other internet
sites on which it might be viewed as well as restraining various defendants,
known and unknown, from continuing to publish the material on the internet
or otherwise. He also sought orders requiring the defendants to provide the
plaintiff with the identity of the web users who had defamed him by their
websites so that he would be able to take steps against them for damages.
4.72 In this context, there is an accepted practice in the UK to commence
proceedingsagainst‘personsunknown’(ofteninmisuseof privateinformation
cases) in order to obtain an injunction and in doing so, notify non parties or
media defendants upon whom it is intended to serve the injunction.57
53. Applause Store Productions Ltd v Raphael [2008] All ER (D) 321 (Jul); [2008] EWHC
1781 (QB) at [62].
54. The Age Co Ltd v Liu (2013) 82 NSWLR 268; (2013) 296 ALR 186; (2013) 272 FLR
426; [2013] NSWCA 26; Liu v The Age Co Ltd (2012) 285 ALR 386; (2012) 257 FLR
360; [2012] NSWSC 12.
55. AB Ltd v Facebook Ireland Ltd [2013] NIQB 14 at [1]; HL (a minor) by her father and next
friend, AL v Facebook Inc [2013] NIQB 25.
56. McKeogh v John Doe 1 (username Daithii4U ) [2012] IEHC 95.
57. G & G v Wikimedia Foundation Inc [2009] EWHC 3148; Terry v Persons Unknown [2010]
EWHC 119.

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4.73 The video footage in this case had been posted on YouTube by an Irish
taxi driver whose passenger had left the taxi without paying his fare. The taxi
driver had posted it with the intention of attempting to identify the passenger.
As a result, a person using the pseudonym ‘Daithii4U’ saw the footage and
wrongly identiﬁed the plaintiff by name as the culprit. This led to ‘the most
appalling stream of vile, nasty, cruel, foul, and vituperative internet chatter
and comment’ on YouTube and Facebook directed against this entirely
innocent plaintiff. The commentators felt ‘free to say what they wished about
him, and in language the vulgarity of which offends even the most liberal and
broadminded’.58
4.74 The plaintiff, however, at the time of the event was thousands of
miles away in Japan and was not the man depicted exiting the taxi on that
date. When the matter returned to court, various media outlets reported the
proceedings, and the continued publication of the video footage increased
showing the defamatory abuse directed at the plaintiff (uncorrected). The
judge observed that the court does not have a magic wand and that damage
had already been done. It was impossible to ‘unring’ the bell that had sounded
so loudly. Unfortunately for the plaintiff, ‘the genie was out of the bottle’ and
the media were entitled to report the proceedings provided the report was fair
and accurate.59
Intermediaries
4.75 Where it is not possible to identify or trace the defamer or where the
defamer is unlikely to be able to satisfy any judgment, plaintiffs have turned
their attention to search engines such as Google and web platforms such as
Facebook as identiﬁable defendants with deep pockets.
4.76 In general, the function of intermediaries and their role in the process
of publication is not yet well understood by the public.
4.77 In a number of cases, plaintiffs have brought proceedings against the
local entity of Google, such as Google Australia, Google New Zealand and
Google UK on the basis that they had the ability to remove URL links or had
the ability to control or direct the conduct of Google Inc. It is reasonably
settled that these local entities, in the absence of contrary evidence, do not
have that ability and the claims made against them have been struck out.60
60. Ghosh v Google Australia Pty Ltd [2013] NSWDC 146; Rana v Google Australia Pty Ltd
[2013] FCA 60; Duffy v Google Inc [2011] SADC 178; A v Google New Zealand [2012]
NZHC 2352; Tamiz v Google Inc and Google UK Ltd [2012] All ER (D) 14 (Mar); [2012]
EWHC 449 (QB).

150
4.78 In Ghosh v Google Australia Pty Ltd, the owner of a holiday rental property
brought proceedings in relation to three blogs with these titles:
(a) holidayhousefromhell.blogspot.com;
(b) where NOT to go; Never again, HORRIBLE HOLIDAYS ON THE
GOLD COAST, BUNDALL GOLD COAST; and
(c) A Current Affairs Naked Neighbours Video of November 2011.
4.79 The plaintiff claimed that the blogs were repeatedly attached and
sent by Google Australia to all listing Holiday Rental websites. Google
Australia applied to dismiss the claim on the basis that it is a wholly owned
subsidiary of Google International LLC, registered in Victoria and Google
Inc, incorporated in the State of Delaware in the United States which is
the ultimate holding company of Google Australia. It said that it was not
responsible for the day-to-day operations of Google Inc and was neither
authorised to, nor able to control or direct, the conduct of Google Inc.
Instead, Google Inc owns and operates the domains google.com.au as well
as google.com and search engines at these domains were exclusively operated
and controlled by Google Inc.
4.80 The court struck out the claim on the basis that there was no reasonable
prospect of the plaintiff proving that Google Australia had the ability to
control or direct the conduct of Google Inc.
4.81 Proceedings can be commenced, however, against Google Inc as a
defendant and leave obtained to serve those proceedings outside Australia
under the long-arm jurisdiction of the rules of court. The grounds of the
application would be that the proceedings were based on a tort committed in
Australia or based on recovery of damage suffered within Australia caused by
a tort.61
4.82 It has been held that a search engine such as Google or Yahoo
may be liable as a publisher at law in Australia, subject to the defence of
innocent dissemination, if it participates in and enables the dissemination of
defamatory material.62
In the UK however, in the absence of any conduct
authorising or acquiescing in the continuing publication of defamatory
material after complaint is made, and in the absence of knowledge of the
defamatory material prior to the complaint, it has been held that a search
engine cannot be regarded as a publisher of the defamatory material.63
It may
be a mere conduit or passive distributor, like a telephone line or broadband
61. Rana v Google Australia Ltd [2013] FCA 60 at [44]–[46]; Barach v University of New South
Wales [2011] NSWSC 431 at [32]–[62].
62. Trkulja v Google Inc LLC (No 2) [2010] VSC 490 at [23].
63. Bunt v Tilley [2006] All ER (D) 142 (Mar); [2006] 3 All ER 336; [2007] 1 WLR 1243;
Metropolitan International Schools Ltd t/as Skills Train and/or Train2Game v Designtechnica
Corp t/as Digital Trends Corp [2009] All ER (D) 263 (Jul); [2011] 1 WLR 1743; [2009]
EWHC 1765 (QB).

151
provider. This position has been reinforced for website operators, featuring
user generated content, with a statutory defence under s 5 of the Defamation
Act 2013 (UK).
4.83 Where Google Inc has been joined to proceedings for defamation in
Australia, the argument has been made that it is not a publisher of defamatory
material unless it is notiﬁed of it and does not take steps to remove it. Instead,
it was accepted that Google Inc intended to publish the material that its
automated system produced because that was what the search engines were
designed to do upon a search request being typed into one of Google Inc’s
search products.64
It was no answer to the action that the search engine’s role
was a passive one as ‘passive’ distributors such as newsagents and libraries
have been held liable at common law and their liability depends upon the
common law defence of innocent dissemination. Also relevant are those cases
where someone with the power to remove a defamatory publication chooses
not to do so in circumstances where an inference of consent can be drawn.65
4.84 In Tamiz v Google Inc,66
the plaintiff brought proceedings in England
against Google Inc as a result of comments which appeared on the blog
site London Muslim. The plaintiff was unable to identify certain anonymous
commentators who accused him of being a drug dealer, stealing from his
employer and being hypocritical in his attitude towards women, and he
sought leave of the court to serve the claim on Google Inc in California.
The English Court of Appeal held that even though Google Inc provides a
platform along with advertising for the blogs and has the capacity for control
over them, this did not make it a primary publisher in the sense that it would
be vicariously liable for the users. Nor did it make Google Inc a secondary
publisher facilitating publication in the manner of a distributor unless it knew
or ought by the exercise of reasonable care to have known that the publication
was likely to be defamatory. However, after notiﬁcation of the defamatory
material, the Court of Appeal considered that the position of Google Inc
was different leaving it in the position of participating in the publication and
making it potentially liable on the basis of consent or acquiescence (after it
had had a reasonable time to act to remove the defamatory statements).67
4.85 It is relevant that in a different context involving advertisements, the
issue of whether Google Inc was liable for the misleading and deceptive
conduct of advertisers arose.68
The advertisers used Google Inc to display
sponsored links in response to search requests made by users of the Google
64. Trkulja v Google Inc LLC (No 5) [2012] VSC 533 at [27]–[28].
65. Rana v Google Australia Ltd [2013] FCA 60 at [56].
66. [2013] All ER (D) 163 (Feb); [2013] 1 WLR 2151; [2013] EWCA Civ 68.
67. Above at [24]–[35]; see also Byrne v Deane [1937] 2 All ER 204; [1937] 1KB 818;
Godfrey v Demon Internet Ltd [2001] QB 201; [1999] 4 All ER 342; [2000] 3 WLR 1020;
Davison v Habeeb [2011] All ER (D) 205 (Nov); [2012] 3 CMLR 104; [2011] EWHC
3031 (QB).
68. Google Inc v ACCC (2013) 294 ALR 404; 99 IPR 197; [2013] HCA 1.

152
search engine. The High Court held that Google Inc did not create, in any
‘authorial’ sense, the sponsored links that it published or displayed. The fact
that the display of sponsored links (together with organic search results) could
be described as Google’s response to a user’s request for information did not
render Google Inc ‘the maker, author, creator or originator of the information
in a sponsored link’.69
It was accepted by the court that ordinary and reasonable
users would have understood the sponsored links to be statements made by
advertisers which Google Inc had not endorsed and was merely passing on
for what they were worth. Accordingly, it was held that Google Inc itself
did not engage in misleading or deceptive conduct or endorse or adopt the
representations which it displayed on behalf of advertisers. In this context
(advertisements), the High Court considered that Google was not different
from other intermediaries such as newspapers or broadcasters who publish
the advertisements of others.70
4.86 This decision suggests that a court may turn to the ordinary reasonable
recipient concept to resolve the issue as to whether Google Inc and similar
search engines are capable of being understood as a participating publisher
alongside the author. Until the search engine is put on notice of the defamatory
matter, it may be a mere conduit but once on notice, it has an election within
a reasonable time as to whether it chooses to adopt or endorse by continuing
the facilitation of the original author’s publication.
4.87 However, in Trkulja v Google Inc LLC,71
the plaintiff sued Google Inc
in the Victorian Supreme Court over search results on the internet of his
name Michael Trkulja, consisting of the ﬁrst 10 results of 185,000 results
and various images of him automated by Google Inc in image results. A jury
found the material conveyed the imputation that he was so involved with
crime in Melbourne that his rivals had hired a hit man to murder him. The trial
judge held that the jury were entitled to conclude that Google Inc intended to
publish the material that its automated assistance produced because that was
what they were designed to do upon a search request being typed into one of
Google Inc’s search products. Similar to a newsagent that sells newspapers
containing a defamatory article, there might not have been any speciﬁc
intention by Google Inc to publish the defamatory material but there was
a relevant intention to publish for the purposes of the law of defamation.72
This is consistent with the principle that each person who participates in the
publication of defamatory matter may be liable73
(subject to the defence of
innocent dissemination).
69. Google Inc v ACCC (2013) 294 ALR 404; 99 IPR 197; [2013] HCA 1 at [69].
70. Google Inc v ACCC (2013) 294 ALR 404; 99 IPR 197; [2013] HCA 1 at [69].
71. [2012] VSC 533.
72. [2012] VSC 533 at [18].
73. Webb v Bloch (1928) 41 CLR 331 at 363–365; (1928) 2 ALJR 282.

153
4.88 Google Inc, Twitter Inc and Facebook Inc are all incorporated in the
United States. Assuming liability is established against them in Australia and
judgment entered, the judgment may not be enforceable in the United States
because of the collective effect of the First Amendment of the United States
Constitution, s 230 of the Communications Decency Act 1996 (US) which
protects United States providers of an ‘interactive computer service’, and
the Speech Act 2010 (US) which protects United States citizens from foreign
libel judgments in jurisdictions where the law provides less protection for free
speech than the United States. This may have the effect of neutralising any
judgment entered in Australia and sought to be enforced in the United States.74
The foreign judgment may be recognised only if the plaintiff proves in a United
States court that he or she would have prevailed under United States law.75
It
seems an odd result for international law that even if the applicable law for
the defamation was Australian law, the Speech Act 2010 (US) overrides the
common law choice of law for the cause of action by United States statute.
Meaning
4.89 The defamatory meaning is the crux of many defamation cases. The
ﬁrst step in practice is for the plaintiff to identify the meanings that he or she
asserts were conveyed. The test for these meanings is whether the ordinary
reasonable reader would understand the matter to carry or convey the
imputations complained of.
4.90 The second step is to determine whether that meaning or imputation
is defamatory of the plaintiff. The test for defamation is whether the ordinary
reasonable reader would tend to think less of the plaintiff by reason of the
meanings or imputations conveyed.76
This is the ‘sting’ of the defamation —
the accusation of an act or condition in the published matter which hurts the
plaintiff’s feelings and damages (or at least has the tendency to damage) the
plaintiff’s reputation.
4.91 The interpretation to be given to the published matter must be
objective and according to its ‘natural and ordinary meaning’.77
It is based
upon the ordinary reasonable reader’s general knowledge and experience of
worldly affairs. If there is a particular knowledge which gives the published
matter a special meaning, that knowledge can be relied upon to give a ‘true
74. Investorshub Com Inc v Mina Mar Group Inc, 2011 US Dist Lexis 87566 (MDFLA
20 June 2011); Pontigon v Lord, 340 SW 3d 315 (Mo Ct App 2011); Barach v University
of New South Wales [2011] NSWSC 431; see also J Grimmelmann ‘Speech Engines’
(2014) 98 Minnesota Law Review 868.
75. Barach v University of New South Wales [2011] NSWSC 431.
76. Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; 254 ALR 606; [2009] HCA
16 at [5].
77. Jones v Skelton [1964] NSWR 485 at 491; [1964] ALR 170; [1963] 3 All ER 952.

154
innuendo’78
to the matter published. The imputation (of which complaint is
made) is often not expressly stated in the words used but more often implied
or inferred.79
This means that the imputation may be read only between the
lines or by insinuation or it may be difficult to detect.
4.92 Depending upon the form and context of the publication, reasonable
minds may, and often do, differ as to the meaning of the communication.
Words and images in everyday speech lack precision as to the meaning that
might be understood by the person who receives it. This is particularly the
case in the social media context given the frequent use of abbreviations and
use (and misuse) of acronyms.
4.93 Consider, for example, the meaning of the sentence ‘I never said she
stole my money’. The sentence is capable of having seven different meanings
depending on which word in the sentence is emphasised. Some of those
meanings are capable of being defamatory, accusing the person of stealing,
and others are not.
4.94 The meaning intended to be conveyed by the person who published the
matter is not relevant to the cause of action as it depends upon the ordinary
reasonableperson’slevelof comprehensionandtheabilitytocomprehendshades
and nuances of meaning from the actual words used. Where two meanings are
reasonably open, one defamatory and one innocent, or if reasonable persons
may differ as to the conclusion to be drawn, the issue as to what is the correct
interpretation, or whether the imputation was in fact conveyed in the context
of the publication, must be left to the trial to determine.80
4.95 The ordinary reasonable person is taken to be a person of average
intelligence who approaches the interpretation of the publication in a fair
and objective manner. The person is neither perverse nor suspicious nor
‘avid for scandal’.81
There is a limit of reasonableness, so that the ordinary
reasonable person does not interpret the publication in a strained or forced or
utterly unreasonable way.82
It is a matter of general impression of the meaning
from the words used and the ordinary reasonable person does not interpret
the publication in a precise manner and does not formulate reasons for the
meaning which is understood.83
78. Grubb v Bristol United Press Ltd [1963] 1 QB 309 at 327; [1962] 2 All ER 380; [1962]
3 WLR 25.
80. Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 164; Favell
v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; [2005] HCA 52 at [6].
81. Lewis v Daily Telegraph Ltd [1964] AC 234 at 260; [1963] 2 All ER 151; [1963]
2 WLR 1063.
83. Lewis v Daily Telegraph Ltd [1964] AC 234 at 277, 285; [1963] 2 All ER 151; [1963]
2 WLR 1063; Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; [2005] HCA
52 at [11]; Jeynes v News Magazines Ltd [2008] All ER (D) 285 (Jan); [2008] EWCA Civ
130 at [14].

155
4.96 The form of the publication may affect the interpretation that might be
given. The opportunity to re-read the matter or to check back on something
means that the first impression can be reconsidered. As a result, the reader of
a book is assumed to read it with more care than the reader of a newspaper.84
By contrast, the ordinary reasonable listener of a radio program or viewer of
a television program does not have the opportunity to reconsider the whole
publication and check back and change first impressions.85
The form of the
publication of a newspaper, its layout, headlines and use of particular terms
are likely to affect the impression gained and may give the words a meaning,
credibility and impact that they might not otherwise possess.86
4.97 The form of publication on social media is unlike most written kinds of
communications but more like oral communications containing conversations.
As a result, the communications are often uninhibited, casual and thoughtless.
People are often anonymous or use pseudonyms so their identities will not be
known to others. This creates a lack of inhibition affecting what people say in
these circumstances. In its context, social media ‘conversations’ may often not
be taken literally or seriously but understood as statements made in the heat
of the moment.87
4.98 The ordinary reasonable person considers the publication as a whole
and attempts to strike a balance between the most extreme meaning that the
words could have and the most innocent meaning.88
4.99 The publication has to be considered in its context. If a person
complains about part of a publication which is qualified or altered by another
part of the whole publication, the meaning is to be taken from the whole
publication.89
4.100 Where a web page has links to other web pages on the internet, a reader
may download and read any combination of links but the publication of one
web page is complete when it is downloaded onto the reader’s computer. The
plaintiff may sue upon each separate web page even where there are internal
references to other material available on the same web site.90
84. Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165–166; 143
FLR 180.
85. Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; 241 ALR 468; [2007]
HCA 60.
86. John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77; [2003] HCA 50 at [187].
87. Smith v ADVFN Plc [2008] All ER (D) 335 (Jul); [2008] EWHC 1797 (QB) at [14]–[17].
88. Lewis v Daily Telegraph Ltd [1964] AC 234 at 259–60; [1963] 2 All ER 151; [1963] 2
WLR 1063; Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; [2005] HCA
52 at [17].
89. Malcolm v Nationwide News Pty Ltd (2007) Aust Torts Reports 81-915; [2007] NSWCA
254 at [10].
90. Kermode v Fairfax Media Publications Pty Ltd [2009] NSWSC 1263 at [24].

156
4.101 The capacity for dispute about meaning in defamation cases cannot
be overstated. On the one hand, short statements may take seconds to read
and yet, on the other, many hours may be spent in court at signiﬁcant expense
arguing over the objective meaning of the words. Two short letters which
appeared in the letters columns of The Daily Telegraph would have taken no
more than 60 seconds to read but took the best part of three days in court to
argue a ‘minute linguistic analysis’ of every phrase used in each of the letters.91
4.102 Author, Bob Ellis, wrote a book entitled Goodbye Jerusalem: Night
Thoughts of a Labor Outsider. He quoted a member of the Australian Labor
Party saying about Tony Abbott (then Minister for Employment Services) and
Peter Costello (then Treasurer): ‘They’re both in the right wing of the Labor
Party till the one woman f.…d both of them and married one of them and
inducted them into the Young Liberals.’ Mr Abbott and Mr Costello and their
respective wives sued Ellis and the book publisher Random House. The wives
pleaded that the passage conveyed an imputation of sexual promiscuity. The
trial judge did not accept this but found that an imputation of unchastity was
conveyed. On appeal, the court found that the meaning was not merely one
of unchastity in the sense of pre-marital sex, but one of much grosser sexual
misconduct, namely the exploitation of a sexual liaison or the prospect of it
to achieve the result of changing each man’s political allegiance.
4.103 As the test is objective, what was intended by the publisher is not
relevant nor is what the persons who actually read the matter believed or
understood.92
This principle indicates that there is a distinction made between
the actual interpretation of those to whom the matter was published and the
conceptual interpretation of the ordinary reasonable person in the community
whose interpretation determines the meaning for the law of defamation. Even
where the audience of the publication is restricted to a certain group, the
meaning is determined by the ordinary reasonable reader in the community
and not the ordinary reasonable person within the particular group to whom
it is published, unless a true innuendo is pleaded that it has a special meaning
to that group.
4.104 Although the meaning intended by the person who published the
defamatory matter is not relevant to its meaning (or whether it is defamatory),
the purpose of the publisher is relevant to malice and relevant to damages.
Defamation
4.105 The High Court has conﬁrmed that the test to be applied in Australia
as to whether the meaning is defamatory is whether the published matter is
91. Slim v Daily Telegraph Ltd [1968] 2 QB 157; [1968] 1 All ER 497; [1968] 2 WLR 599.
92. Parker v Falkiner (1889) 10 NSWR 7 at 10–11; Reader’s Digest Services Pty Ltd v Lamb
(1982) 150 CLR 500 at 506; 38 ALR 417; [1982] HCA 4.

157
likely to lead an ordinary reasonable person to think less of the plaintiff.93
Once again, as with the objective meaning of the words, the test depends upon
the ordinary reasonable person applying his or her general knowledge and
experience of worldly affairs. It depends upon general community standards.
4.106 It should not be taken to refer to the application by the ordinary
reasonable person of moral or social standards but the application of general
community standards, implying a standard of decency in a person in society
who abides by its standards, values and rules, distinct from a person who
does not.94
The standards which might apply will vary according to the nature
of the imputation but it is determined objectively in the context of current
community standards. The test does not depend for its exercise upon the
existence of the standards but on the loss of reputation.95
4.107 Twitter was created in 2006 enabling text messages of up to 140
characters to be sent and read as ‘tweets’. Registered users can post tweets, but
unregistered users can still read them as they are available publicly by default.
Twitter allows its users to amend their privacy settings so that tweets posted
by a user can be restricted as viewable by selected followers only. Despite this,
if a user who is allowed to follow the person with restrictive privacy settings
then retweets the original publication but does not have privacy settings, the
original publication will be publicly viewable.
4.108 In one of the first significant social media defamation cases, Chris
Cairns, a well known international cricketer who represented New Zealand
on many occasions, brought proceedings in the UK against Lalit Modi, the
former Chairman and Commissioner of the Indian Premier League and Vice
President of the Board of Cricketing Control for India.
4.109 Mr Modi had posted the following tweet on Twitter ‘Chris Cairns
removed from the IPL auction list due to his past record in match fixing. This
was done by the Governing Council today.’ Mr Modi was contacted by the
Cricketing website Cricinfo seeking confirmation of his Twitter message and
he responded ‘We have removed him from the list for alleged allegations (sic)
as we have zero tolerance for this kind of stuff. The Governing Council has
decided against keeping him on the list.’
4.110 Mr Cairns sued Mr Modi for defamation in respect of the tweet and
the comment to Cricinfo. It was held that the defamatory meaning of the
tweet was that Mr Cairns had fixed cricket matches while the meaning of
the statement to Cricinfo was not as clear because of the garbled reference
to an ‘alleged allegation’ but that it meant that there were ‘strong grounds to
suspect’ that Mr Cairns was guilty of match fixing. It was accepted that the
93. Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; 254 ALR 606; [2009] HCA
16 at [5].
94. Above at [37]–[40].
95. Above at [48].

158
tweet was received by only 65 followers within England and Wales being the
jurisdiction in which Mr Cairns sued for defamation. The second publication
to Cricinfo was republished on their website for only a period of hours and
it was estimated that about 1,000 people read this publication.96
Taking all
matters into account, the trial judge97
awarded Mr Cairns the sum of £90,000
(including £15,000 for aggravation) and this award was upheld on appeal.98
4.111 The test of what is defamatory historically has aspects to it which
involve some complexity. In some instances, material will be defamatory
even if no imputation or fault is attributed to the plaintiff. For example,
the suggestion that the plaintiff was so fat as to appear ridiculous as he
came on to the ﬁeld to play a rugby league match was held to be capable
of being defamatory even though there was no suggestion of fault on the
plaintiff’s part.99
4.112 The traditional test or ‘ancient formula’ of what is defamatory is that
the matter ‘exposes the plaintiff to hatred, contempt or ridicule’.100
It has also
been held to be defamatory if the matter tends to make the plaintiff be shunned
and avoided without any moral discredit on the plaintiff’s part.101
This test
accounts for persons who are accused of suffering from a contagious disease
or stigmatised condition where no direct moral responsibility could be placed
upon them. For example, the suggestion that a person was affected by mental
illness could be defamatory, although that has been recently questioned.102
4.113 The combined formulation of these tests may for present purposes
be stated as follows:
… a matter is defamatory if it is likely to lead ordinary reasonable persons to
think less of the plaintiff or is likely to expose a plaintiff to hatred, contempt or
ridicule amongst ordinary reasonable persons, or is likely to cause the plaintiff
to be shunned or avoided amongst ordinary reasonable persons, even if there
is no moral discredit on the plaintiff’s part.
4.114 It is also important to understand that a defamatory statement need
not be proven to be untrue by the plaintiff. The onus is on the defendant to
prove the truth of the defamatory statement. Further, a plaintiff does not have
to show that the persons to whom the defamatory material was published
do or do not believe it. In other words, an imputation to be defamatory
need have no actual effect on a person’s reputation. The law only looks to its
96. Cricinfo settled by paying £7,000 damages plus costs.
97. Cairns v Modi [2012] EWHC 756 (QB).
98. Cairns v Modi [2012] EWCA Civ 1382.
99. Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449.
100. Parmiter v Coupland (1840) 6 M&W 105; 151 ER 340; Tournier v National Provincial and
Union Bank of England Ltd [1923] All ER Rep 550; [1924] 1KB 461 at 477.
101. Youssoupoff v Metro-Goldwyn-Maher Pictures Ltd (1934) 50 TLR 581 at 588.
102. See Mallik v McGeown [2008] NSWCA 230 at [56]–[57]; Prefumo v Bradley [2011] WASC
251 at [86]–[87].

159
tendency (or likelihood) so there is a cause of action even if the words were
not believed by the audience.103
The issue is to be determined by the tendency
of the matter published to negatively affect the ordinary reasonable person’s
esteem for or evaluation of the plaintiff’s reputation.
4.115 The open and public accessibility of social media has made it possible
to observe the habits of ordinary people in expressing themselves in everyday
speech. Not only do people not do so with precision as to the meaning of the
words used but the social dynamic and the emotional charge of being able to
say what one is thinking enables the first thing that comes to mind to be said
without care and also the worst of things to be said deliberately, which can be
read by anyone and everyone.
4.116 Society may be in a developmental stage in terms of understanding
how social media is used and what is socially acceptable. Statements are
often made in the use of social media which would not be made face to face.
Without seeing or hearing the reaction of the person concerned, the written
word is often stated without inhibition or sensitivity.
4.117 In some instances, this behaviour may have been initially due to a
lack of awareness of the extent to which matters on social media are publicly
available but as people have become more aware of that fact, deliberate and
sinister habits have emerged, particularly behind the mask of anonymity.
4.118 In a defamatory context the following practices have become common
in the use of social media: the spreading of rumours; leaping to conclusions
of guilt; the use of ridicule and humour to denigrate; and the use of vicious
attacks and defamatory abuse.
Rumours
4.119 A person who repeats or spreads a rumour is as liable as the original
publisher. By passing it on and giving it credence, the person implies that it
is well founded or that it may be true.104
It will be no defence for repeating
a rumour to say that someone else had said it first, as it is necessary for
the republisher to justify the truth of the rumour in order to defend it. As
previously noted, this is a significant issue in social media given the relative
ease for users to republish someone else’s statements; see the case of Sally
Bercow referred to below.
103. Knight v Gibbs (1834) 1A&E 43; Gillett v Bullivant (1846) 7 LT (0S) 49; Pratten v Labour
Daily [1926] VLR 115 at 122; (1925) 32 ALR 152; Hough v London Express Newspaper
Ltd [1940] 3 All ER 31; [1940] 2KB 507 at 515; Morgan v Odhams Press Ltd [1971]
2 All ER 1156; [1971] 1 WLR 1239 at 1252; Cornes v The Ten Group Pty Ltd (2011)
114 SASR 1; (2011) 275 LSJS 476; [2011] SASC 104 at [7]–[8].
104. Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 300; 42 ALR 487; [1982]
HCA 50.

160
Leaping to conclusions
4.120 The repetition of an allegation which has been made by an authority
such as the police can lead ordinary reasonable persons to understand that in
its context, the person accused is guilty. Allegations or rumours, if repeated,
whether they involve criminal conduct or not, need to be carefully stated
because of the tendency for people to understand and believe that where
there is smoke there is ﬁre.105
4.121 However, a statement that a person has been arrested and charged
with a criminal offence is not by itself capable of conveying an imputation
that the person is guilty or probably guilty of that offence.106
The ordinary
reasonable reader is mindful of the presumption of innocence but will
view a person under arrest with suspicion, concluding that the person is
suspected by the police of having committed the crime and the police have
grounds for laying a charge. As a result, such a statement imputes that the
police suspect the person of having committed the criminal offence and
that the person has so acted as to have warranted that suspicion and that
the police have reasonable cause for having that suspicion based upon the
person’s actions.107
4.122 The common law has developed three tiers of gravity of defamation
reﬂecting the different degrees by which a person’s reputation may be
damaged. At the lowest level, there are grounds to investigate whether the
person committed a crime; next, there is a reasonable basis for suspicion that
the person committed the crime (which would justify an arrest) or a reasonable
belief that the person committed the crime based on proper material (such as
report of court proceedings); and at the highest level, the person committed
the crime and is guilty.108
4.123 For example, Sally Bercow was the wife of the Speaker of the House
of Commons and had made a number of television appearances. She often
used Twitter and had over 56,000 followers. In a classic example of the
spreading of a rumour combined with leaping to a conclusion, she posted a
tweet: ‘Why is Lord McAlpine trending? *
Innocent face*
’.
105. Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; [2005] HCA 52 at [14].
106. Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 300; 42 ALR 487; [1982] HCA
50; Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; [2005] HCA 52 at [12].
107. Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301; 42 ALR 487; [1982]
HCA 50; Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; [2005] HCA 52
at [12]–[15].
108. Lewis v Daily Telegraph Ltd (1964) AC 234 at 282; [1963] 2 All ER 151; [1963] 2 WLR
1063; Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 300–301; 42 ALR 487;
[1982] HCA 50; Chase v Newspapers Ltd [2003] EMLR 11; Favell v Queensland Newspapers
Pty Ltd (2005) 221 ALR 186; [2005] HCA 52 at [12]–[15]; West Australian Newspapers
Ltd v Elliott (2008) 37 WAR 387; 250 ALR 363; [2008] WASCA 172 at [44]–[49].

161
4.124 Lord McAlpine was former Deputy Chairman of the Conservative
Party and a former party Treasurer. He was a close aide to Margaret Thatcher
during her time as Prime Minister. He retired in 1990 and had lived in Italy for
over 10 years out of the public eye.
4.125 The Twitter website has a screen with a box headed ‘Trends’ and lists
names of individuals and other topics which are generated by an algorithm
which identifies topics that are immediately popular and are ‘trending’.
4.126 Lord McAlpine sued Mrs Bercow for defamation alleging that the
natural and ordinary meaning of the tweet meant that he was a paedophile
who was guilty of sexually abusing boys living in care.
4.127 Mrs Bercow denied that meaning, but suggested that the question she
asked in her tweet was simply a question and was as neutral as the statement
on the Twitter screen itself which listed the fact that Lord McAlpine was
trending.
4.128 Justice Tugendhat109
observed that if the tweet meant that Lord
McAlpine had abused children, there was no dispute that that was one of the
most seriously defamatory allegations which it was possible to make against
a person.
4.129 In the absence of other evidence, the tweet had little meaning. There
had however been a program broadcast on the preceding Friday night on the
BBC’s current affairs Newsnight which included an allegation by a man who
claimed he was abused when he was living in care in Wales and that one of
his abusers was a person who was ‘a leading conservative politician from the
Thatcher years’. The Newsnight program did not broadcast the name of the
politician who the complainant identified and said they did not have enough
evidence to ‘name names’.
4.130 Between the broadcast of the Newsnight program on the Friday night
and Mrs Bercow’s tweet on the Sunday following, online and traditional media
reported the matter widely and repeated Newsnight’s allegations. These media
reports included a vehement denial by the former political figure without
identifying him. Several politicians were named on social networking sites as
the likely subject.
4.131 The complainant was reported on the Saturday as saying that the ‘Tory
rapist told me he would kill me if I told police.’
4.132 The judge inferred that there were a substantial number of viewers
who had seen the Newsnight program itself, that a very large number of people
in England and Wales had read one or more of the ensuing media reports
and that the people who viewed the Newsnight program and the people who
109. Lord McAlpine v Bercow [2013] EWHC 1342.

162
had read one or more of the media reports included a substantial number of
readers of Mrs Bercow’s tweet.
4.133 There was no dispute that the tweet identified Lord McAlpine because
it named him. The issue was whether the tweet conveyed the defamatory
meaning complained of by Lord McAlpine treating as part of the general
knowledge of Mrs Bercow’s followers’ knowledge of the Newsnight broadcast
and the media reporting. If not, knowledge would be exclusive to a limited
number of people who may know this information by ‘extrinsic facts’ and the
meaning would only be drawn by ‘innuendo’.
4.134 In order to determine the meaning, the judge applied the test of
reasonableness and that was the hypothetical reader taken to be a reasonable
representative of users of Twitter who followed Mrs Bercow.
4.135 It was common ground that in the past some Twitter users had used
Twitter to identify alleged wrongdoers and others whom the traditional media
had not identified when reporting a story. An example was when Twitter users
identified a footballer, Ryan Giggs, who had obtained a privacy injunction in
an action where he was identified in the public court papers only by the initials
CTB.110
4.136 The judge observed that words may be defamatory in whatever form
they are used. A question, or a rhetorical question, or any other form of
words may, in principle, be understood to convey a defamatory meaning. The
meaning of a statement or question depends on the context. The author is not
responsible for an inference drawn from neutral words unless it is one that a
reasonable person would draw.
4.137 The judge also observed that if there are two possible meanings, one
less derogatory than the other, whether it is the more or the less derogatory
meaning that the court should adopt is to be determined by reference to what
the hypothetical reasonable reader would understand in all the circumstances.
It would be unreasonable for a reader to be avid for scandal and always to
adopt a bad meaning where a non-defamatory meaning was available. But
likewise, it would be unreasonable and naïve for a reader always to adopt the
less derogatory meaning where a defamatory meaning was available.111
4.138 There was debate as to what the words ‘innocent face’ meant in the
context. Lord McAlpine’s counsel submitted that the words were to be read
as irony, as meaning the opposite of their literal meaning. He submitted that
people sometimes ask a question to which they already know the answer
and they may do that as an indirect way of bringing out into the open
110. CTB v News Group Newspapers Ltd [2011] EWHC 1232 (QB); see also CTB v News
Group Newspapers Ltd [2011] All ER (D) 142 (May); [2011] EWHC 1326 (QB); and
CTB v News Group Newspapers Ltd [2011] EWHC 1334 (QB).
111. Lord McAlpine v Bercow [2013] EWHC 1342 at [66].

163
something they already know or believe to be a fact. He submitted that the
reasonable explanation for Mrs Bercow inserting the words ‘innocent face’
in the tweet was to negate a neutral interpretation, and to hint, or nudge
readers into the understanding that Lord McAlpine had been doing wrong.
In contrast, Mrs Bercow’s counsel submitted that the words ‘innocent
face’ were to be read literally and that the expression which the reader was
being invited to imagine on Mrs Bercow’s face in asking the question was
‘deadpan’. It was an expression to convey that she was asking it in a neutral
and straightforward manner. He claimed that it meant that she had noticed
that Lord McAlpine was trending and all she was asking was that someone
should tell her why.
4.139 The judge held that it was not necessary for a reader of the tweet
to have had any prior knowledge of Lord McAlpine as a leading politician
of the Thatcher years in order for them reasonably to have linked the tweet
naming him with knowledge about allegations in the Newsnight broadcast. The
judge said that the tweet identified him by his title as a peer of the realm.
The tweet asked why Lord McAlpine was trending in circumstances where
he was not otherwise in the public eye at the time of the tweet and there was
much speculation as to the identity of an unnamed politician who had been
prominent some 20 years before.
4.140 The judge held that the reasonable reader would understand the
words ‘innocent face’ as being insincere and ironical. It was reasonable to
infer that Lord McAlpine was trending because he fitted the description of
the unnamed abuser. The reader would reasonably infer that Mrs Bercow had
provided the last piece in the jigsaw.
4.141 In doing so, Mrs Bercow by implication repeated the accusation of
a man who complained he was sexually abused and added the name which
had been omitted from the Newsnight program. By virtue of the ‘repetition
rule’ as the writer of the tweet, she was treated as if she had made, with the
addition of Lord McAlpine’s name, the allegation in the Newsnight program
and other media reports which had previously been made without his name.
It was therefore an allegation of guilt. The judge found that the tweet meant,
in its natural and ordinary defamatory meaning that Lord McAlpine was a
paedophile who was guilty of sexually abusing boys living in care.
4.142 Mrs Bercow and Lord McAlpine subsequently entered into a
confidential settlement in which she agreed to apologise on Twitter: ‘I have
apologised sincerely to Lord McAlpine in court — I hope others have learned
tweeting can inflict real harm on people’s lives!’.
4.143 A number of others who published similar defamatory tweets
suggesting his guilt also settled. One of those was Alan Davies, a panellist on
the BBC QI program. His tweet at the time to almost 450,000 followers asked
‘Any clues as to who the Tory paedophile is?’. He shortly after retweeted a
response which named Lord McAlpine.

164
4.144 When threatened with action, Mr Davies tweeted an apology and
subsequently agreed to pay Lord McAlpine damages and legal costs and
apologised in court.
4.145 Lord McAlpine donated the damages he received to charity. His
counsel said:
This case is a perfect example of the effect of recklessly retweeting a
defamatory statement. There still remain people influenced by this tweet and
all the apologies in the world are not going to put the situation back to where
it was. Whilst Lord McAlpine accepts Mr Davies’ apology, he and his family
have been caused immeasurable distress which cannot be rectified. The fact of
the matter is that Mr Davies has irresponsibly fanned the work of the Internet
trolls who, despite soundbites and promises from the government, seem to be
able to act with impunity from prosecution.
4.146 Leaping to conclusions is an everyday event. We typically form
conclusions without having all the facts and reach unwarranted conclusions
when reading the news or observing others’ conduct. One makes inferences
and assumptions in forming such conclusions, but when expressing a
conclusion in social media it must be understood that it is a risk with potentially
serious consequences. If the conclusion is wrong, a mistake has been made
and there is likely to be no defence to the defamatory imputation published.
The more prudent course is to seek, if one can, more information or seek
clarification of one’s inference or assumption from the person concerned,
before expressing the conclusion.
Ridicule
4.147 A statement which is humorous may still be defamatory if it is
understood as defamatory by the ordinary reasonable person. As referred to
earlier, the test of whether the publication is defamatory is whether the matter
is likely to lead an ordinary reasonable person to think less of the plaintiff.
This test had traditionally been formulated in earlier times as whether the
matter exposed the person to ‘hatred, contempt or ridicule’.112
4.148 Facebook was established in 2004 but was preceded by ‘Facemash’
which was set up to rate the attractiveness of Harvard University students.
Mark Zuckerberg uploaded photographs of students from their college
facebooks and placed them side by side. The user was asked who was ‘hotter’
with the comment ‘Were we let in for our looks? No. Will we be judged
on them? Yes.’ More than 450 signed up to view the images and rate them,
logging 22,000 page views in two days. Zuckerberg did not expect the
reaction, noting that ‘people are more voyeuristic than what I would have
thought’. This was 2003. Fortune Magazine commented: ‘There may be a new
112. Parmiter v Coupland (1840) 6 M&W 105 at 108; 151 ER 340 at 342.

165
kind of internet emerging — one more about connecting people to people,
than people to websites.’
4.149 Zuckerberg faced expulsion for breach of privacy and copyright but
not defamation. The presentation of a photograph of a person without the
person’s consent is not usually defamatory in itself but the placement of it
alongside another person’s photograph with a rating of ‘not hot’ carries the
risk of being held up to hatred, contempt or ridicule.113
Plaintiffs have brought
proceedings where they have been called ‘fat’114
or ‘ugly’115
and the borderline
as to what is defamatory in ridicule cases is often difficult to deﬁne.
4.150 Even if the ordinary reasonable person would understand that the
matter was not to be taken literally but was plainly intended as a joke, it is not
correct that it will be incapable of being defamatory, whether it is facetious
or offensive.116
The critical question is what the joke says about a person and
whether what is said is defamatory.
4.151 A judge has observed that humour is notoriously subjective, as
captured in the quote by Mel Brooks: ‘Tragedy is when I cut my ﬁnger. Comedy
is when you fall in an open sewer and die.’117
Whether the publication can be
characterised as a joke which is incapable on that basis of being understood in
any defamatory sense is essentially an evaluative judgment and one informed
by social context and community values.118
4.152 Nicole Cornes was married to a well known South Australian AFL
footballer, coach and commentator. She wrote a column in The Sunday Mail
newspaper in which she praised another AFL footballer, Stuart Dew, for his
decision to give up his football career to be with his girlfriend. She described
his sensitivity, chivalry and masculinity and in her praise for him, she said ‘I fell
for Mr Dew when he told me how he tended his rose garden …’.
4.153 Some years later after the relationship with the girlfriend was over,
Mr Dew was interviewed on Channel Ten for a television program, Before the
Game. One of the Panel raised the fact that Nicole Cornes had written the article
saying that she loved him because he had a rose garden and tended his roses, at
which point another panel member said ‘and apparently you slept with her too’.
4.154 Although Channel Ten contended that the meaning of the words was
a joke and not to be taken seriously, the court held that the ordinary reasonable
viewer would have understood the meaning to be that Mrs Cornes willingly
had consensual sexual intercourse with Mr Dew, and that at the time of the
113. Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443; (1991) Aust
Torts Reports 81-125; Berkoff v Burchill [1996] 4 All ER 1008.
114. Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449.
115. Berkoff v Burchill [1996] 4 All ER 1008.
116. Hanson-Young v Bauer Media Ltd [2013] NSWSC 1306 at [8]–[9].
117. Hanson-Young v Bauer Media Ltd [2013] NSWSC 1306 at [9].
118. Hanson-Young v Bauer Media Ltd [2013] NSWSC 1306 at [10]–[11].

166
interview, a substantial proportion of viewers knew or believed that she had
been married to Mr Cornes so that the sexual intercourse had occurred at a
time when she was married and therefore was unfaithful to her husband and
had committed adultery. The court awarded damages in the sum of $85,000.119
4.155 It is relevant in this context that the trial judge considered whether:
(a) the statement was seriously intended in every respect (ie as a statement of
fact or alleged fact, and no more);
(b) the statement was a joke about a true fact (or which carried an implied
statement of fact); or
(c) the statement was a joke involving reference to a nonsensical fact or
statement.
4.156 The judge observed that if a statement was understood as a joke, then
(a) would not be applicable. If the statement is a joke about a true fact, then
in respect of (b), it will be up to the defendant to prove the truth of that
statement of fact. If it comes within (c), it may be argued that the matter is
devoid of meaning, but matter published for the purpose of having a joke
may nevertheless be defamatory if it is understood by the ordinary reasonable
person as making a defamatory statement of fact.120
4.157 If the defamatory statement is an expression of opinion, for the
purpose of having a joke, it will be up to the defendant to establish the defence
of honest opinion if it is available.
Abuse
4.158 A substantial amount of material on social media is abusive and
offensive.
In a case, AB Ltd v Facebook Ireland Ltd 121
involving a campaign of a series
of gratuitous and malicious slurs, consisting of both words and images posted
by the defendants on Facebook, the trial judge observed:122
It is indisputable that social networking sites can be a force for good in
society, a truly positive and valuable mechanism. However, they are becoming
increasingly misused as a medium through which to threaten, abuse, harass,
intimidate and defame. They have become a source of fear and anxiety.
119. Cornes v The Ten Group Pty Ltd (2011) 114 SASR 1; (2011) 275 LSJS 476; [2011]
SASC 104.
120. Cornes v The Ten Group Pty Ltd (2011) 114 SASR 1; (2011) 275 LSJS 476; [2011] SASC
104 at [82]–[85]; see also Entienne Pty Ltd v Festival City Broadcasters Pty Ltd (2001)
79 SASR 19; [2001] SASC 60.
121. [2013] NIQB 14.
122. Above at [13].

167
So-called “trolling” appears to be increasingly common place. There is much
contemporary debate about evil such as the bullying of school children and
its potentially appalling consequences. Social networking sites belong to the
“Wild West” of modern broadcasting, publication and communication …
The misuse of social networking sites and the abuse of the right to freedom
of expression march together. Recent impending litigation … confirms that,
in this sphere, an increasingly grave mischief confronts society.
4.159 Words can be abusive, vulgar or objectionable without being
defamatory.Wordsmightinjureaman’spridewithoutinjuringhisreputation.123
Where the ordinary reasonable person understands the statement as being
‘vulgar abuse’, it is not capable of being defamatory.
4.160 Whether abusive words are capable of conveying a defamatory
meaning depends on the usual tests of whether the matter is likely to lead an
ordinary reasonable person to think less of the plaintiff (and, as indicated in
the previous section, whether it has the tendency to hold the plaintiff up to
hatred, contempt or ridicule).
4.161 There is not a dichotomy between vulgar abuse and matter which is
defamatory.124
There will be instances in which the position is clear enough
to conclude that abusive words are incapable of conveying any defamatory
meaning. The Frenchman’s taunt in the Monty Python film The Holy Grail
— ‘Your mother was a hamster and your father smelt of elderberries’ — is
obviously incapable of being defamatory.125
4.162 In one case, a defendant posted on Facebook about the plaintiff, ‘You
are a lying, cheating, stealing, selfish, incredibly negative, self-pitying, bad
person. Susan deserves better than you and you deserve to have no friends.’
The plaintiff pleaded an imputation that he ‘is a person who deserves not
to have any friends’. The defendant argued that this was mere vulgar abuse
and that the imputation was bad in form as it did not specify any defamatory
act or condition attributable to the plaintiff. While the judge considered that
vulgar abuse was not incapable of being defamatory on that account alone,
her Honour struck out the imputation as bad in form on the basis that it was a
conclusion saying what the plaintiff deserved without saying why.126
4.163 The form of communication on social media lends itself to vulgar
abuse and statements made in the heat of the moment.127
Even if they are
found to be defamatory, they may in the circumstances of the publication be
regarded as trivial for which a statutory defence is available.
123. Mundey v Askin (1982) 2 NSWLR 369 at 372.
124. Bennette v Cohen (2005) 64 NSWLR 81; [2005] NSWCA 341 at [51].
125. Polias v Ryall [2013] NSWSC 1267 at [15].
126. Polias v Ryall [2013] NSWSC 1267 at [15]–[16].
127. Smith v ADVFN Plc [2008] All ER (D) 335 (Jul); [2008] EWHC 1797 (QB);
Clift v Clarke [2011] EWHC 1164.

168
4.164 In Australia, one of the ﬁrst cases involving Twitter and Facebook,
Mickle v Farley,128
concerned a teacher at a regional High School in New South
Wales. The school had decided to honour the teacher, after many years of
service, with the naming of the School Music Centre after her. The son of
the head teacher of the music department of the school took to Twitter
and Facebook to attack the teacher’s good name with vitriolic abuse. Others
contributed to the conversation. One of the friends said, ‘You’re all entitled
to your opinions. I in no way am arguing with that. But be very very VERY
careful what you post on public media.’
4.165 The defendant responded: ‘Like I said I can post whatever the f..ked
I like and if you don’t like it block me so you don’t have to read it. I don’t give
a s..t. She has f..ked with my family’s life for too long for me to give a s..t if
anyone gets hurt over what I have to say about her.’
4.166 The plaintiff was made aware of the tweets and posts by the principal
of the school after they had been disseminated amongst students, parents,
teachers and members of the local community. The plaintiff was devastated.
4.167 The judge found that the statements were utterly baseless and awarded
the plaintiff $105,000 including $20,000 aggravated damages.129
4.168 In England, a Facebook page was set up to promote an 18th century
coach inn known as ‘The Bell’. When there was a falling out between the
owner of the inn and a former worker who had set up the Facebook page,
the worker rebranded the page ‘Toad of Bell Enders — How not to run a
Cotswold Pub’ and called him ‘Toad of Toad Hall’. The Facebook page had
over 100 members and the owner became the subject of a torrent of ‘offensive
and salacious’ abuse which included false allegations about his competence,
sobriety and sexual impropriety. He was awarded £9,000 damages.130
DEFENCES
4.169 A defendant has a range of defences available to justify or excuse
a defamatory publication. In essence, the defendant must show that
the defamatory publication was justiﬁed or true, or was excused on some
legitimate basis such as it was published on a privileged occasion, or was an
expression of opinion related to a matter of public interest.
128. [2013] NSWDC 295.
129. Above.
130. Leon Watson ‘Old Etonian businessman wins £9,000 libel damages payout after he
was dubbed Mr Toad on disgruntled pub employee’s Facebook page’, Mail Online
(3 February 2014).

169
4.170 There is also a range of miscellaneous defences which would in certain
circumstances excuse the defamatory publication. These include innocent
dissemination, triviality and time limitation.
Truth
4.171 It is a defence to the publication of defamatory matter if the
defamatory imputations are substantially true.131
The law considers that the
truth stated about a person’s reputation which is defamatory but true will
lower the reputation to its proper level and does not damage it.132
It is not
sufficient to prove the truth of the literal meaning but necessary to prove
the truth of the defamatory imputation. Slight inaccuracies of detail will not
affect the substance of the defamatory accusation if it is true.133
4.172 Truth in this context is dependent upon facts, distinguished from
opinion, and provable by admissible evidence in court. Social media relates to
the interaction or communication of people which involves more often the
exchange of opinion and thoughts rather than provable statements of fact.
Underlying the opinion, however, will often be a statement of fact on which
the opinion is expressed. In order to defend defamatory statements of fact, it
will be necessary for a defendant to show that the statements of fact are true.
4.173 The immediacy and availability of social media 24 hours a day means
that information is communicated at any given moment which may make
it indefensible as truth at a later time. This phenomenon has affected the
reporting of news in a number of ways. People using social media may be
eye witnesses of events, the news of which can be transmitted by instant
photos, videos, or verbal accounts before the traditional media organisations
have collected the information, checked the facts and presented the news in a
responsible and reasonable way. Users of social media tend to show no such
responsibility and in the immediacy of the moment, often exercise none.
4.174 After the Boston Marathon bombing in 2013, Twitter users in
particular rushed to identify the Boston bombers and defamed a number
of people in doing so without any justification. The rush to find the guilty
sacrificed truth and credibility in the information posted. The constant shifting
of the information and allegations in real time by any number of social media
users carries a significant danger for society of not only people being defamed
but in placing institutions at risk. The clearest example was when the Twitter
account of Associated Press was hacked and tweets were issued suggesting
that the White House had been bombed and President Obama injured.
Immediately the Dow Jones slumped until the news was corrected.
131. Defamation Act 2005 s 25.
132. Rofe v Smith’s Newspapers Ltd (1924) 25 SR (NSW) 4 at 21; 42 WN (NSW) 3.
133. Sutherland v Stopes [1925] AC 47 at 79; [1924] All ER Rep 19; Channel Seven Sydney Pty Ltd
v Mahommed (2010) 278 ALR 232; [2010] NSWCA 335 at [138].

Social media and defamation law (watermarked)

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