Lawyers and ‘Likes’: why it’s time to err on the side of caution

We all have opinions, but just how free are we to express these online? Digitisation and the rise of social media means anyone’s opinions, statements, actions, and comments can now disseminate widely, quickly and uncontrollably.

The resulting situations, challenges and complexities are unprecedented, and can reveal inadequacies in many of our pre-internet legal frameworks.

The professional obligations of barristers and lawyers add to the complexities and risks, with lawyers continuing to publicly debate just how much restraint should be shown when airing opinions on social media channels.

In this article, IP/IT expert lawyer Sébastien Clevy reports on a recent decision of the Supreme Court of New South Wales which suggests that legal professionals need to err on the side of caution – even when simply hitting that “like” button on Facebook.

Think twice before you “like”  - social media defamation

In the case of Bolton v Stoltenberg,1 Payne J of the Supreme Court of New South Wales held that a number of Facebook posts about the former mayor of the Narrabri Shire Council were defamatory and awarded the plaintiff $120,000 in damages.

The case centred around six allegedly defamatory posts on a public Facebook page “Narri Leaks”. The page was created and operated by a former town clerk and “ratepayer activist”, Mr Stoltenberg (the first defendant).

Mr Bolton also sought damages, injunctive relief and aggravated damages arising from several Narri Leaks posts created by the first defendant after the commencement of the proceedings. These posts not only referred to the defamation proceedings but also attempted to portray the plaintiff as a “bully” and compared him to public figures who had been accused of serious sexual misconduct, including Mr Harvey Weinstein.

The plaintiff commenced defamation proceedings, alleging that the first defendant published six defamatory posts on Narri Leaks that conveyed various defamatory imputations against him.

The plaintiff also sought damages, injunctive relief and aggravated damages arising from several Narri Leaks posts created by the first defendant after the commencement of the proceedings. These posts not only referred to the defamation proceedings but also attempted to portray the plaintiff as a “bully” and compared him to public figures who had been accused of serious sexual misconduct, including Mr Harvey Weinstein.

A second defendant, Ms Loder, was named in the proceedings. The second defendant was a sitting Narrabri Councillor who had actively interacted with the Narri Leaks posts, liking 64 posts in the group, including one of the alleged defamatory posts. She also uploaded a comment encouraging others to like the posts.

Facebook posts can amount to defamation

Payne J found both defendants were liable for defamation for their conduct on the Narri Leaks webpages.

His Honour found that each of the first defendant’s Facebook posts was defamatory as they tend to lower the plaintiff’s reputation in the minds of right-thinking ordinary members of the community and had been authored, uploaded and published by the first defendant. His Honour ordered the first defendant to pay $110,000 ($80,000 in general damages, $20,000 in aggravated damages and $10,000 in interest). The court found that there was significant risk that the first defendant would repeat the publication of the defamatory posts and granted permanent injunctive relief.

His Honour rejected the first defendant’s argument that the plaintiff hadn’t proven the posts were “published”, finding there was an abundance of facts from which it could be inferred that the posts were downloaded and read by third parties. These included admissions that the first defendant had made regarding the number of “hits” on the webpage and Facebook business records and activity logs showing the “reach” of the defamatory posts, the number of likes and comments for each post.

Facebook comments can amount to defamation

The court ordered the second defendant to pay the plaintiff $10,000 in relation her comment encouraging others to like one of the defamatory posts.

His Honour held that such a comment was a specific endorsement of the Facebook post and encouraged others to like, download and read the post:

“My finding is that Ms Loder has, by words and conduct in this instance, drawn the attention of another to defamatory words. Adding her comment in the way she did, urging others to express their agreement with the post I have found to convey a defamatory imputation, was an act of authorisation which attracts liability [emphasis added].”[i]

Can a simple “like” amount to defamation?

The court did not find the second defendant liable with respect to her conduct in liking the posts uploaded by the first defendant. However, his Honour did suggest that simply liking a post could possibly amount to publication in certain circumstances. His Honour noted:

If by “liking” a post that matter was forwarded to the Facebook feed of another person it may be that it could be concluded that by words or conduct the “like” has drawn the attention of another to defamatory words, meaning there has been primary, or at least secondary, participation in the publication. There was, however, no suffıciently compelling evidence before me that Ms Loder “liking” a Narri Leaks posts had that effect [emphasis added].”[ii]

Exercising caution on social media

The case of Bolton v Stoltenberg highlights that the reach of defamation laws in a social media world is far – just how far though isn’t quite settled.

His Honour’s finding confirms that internet users may be found liable for defamation if they post defamatory material on social media platforms or if they actively engage with, or comment on, defamatory material posted on social media platforms.

The decision highlights the need for lawyers to exercise caution before posting, commenting and even simply liking posts. While simply hitting the like button may seem fairly innocuous, the resulting ramifications of a like may be out of the control of the “liker”. His Honour noted that if it drew somebody’s attention to the post or caused the post to appear in the newsfeed of Facebook friends or followers this may be within the scope of what is considered publication of defamatory material.

Where to from here?

The issues raised in this case raise more difficult questions about the degree to which online publication on social media should be regulated and the potential impact it will have on freedom of expression, privacy and other fundamental freedoms and values.

There is a clear argument for reform and the NSW Government has responded by announcing that the Defamation Working Party appointed by the Council of Attorneys-General (CAG), consisting of Attorneys-General from every Australian jurisdiction, will examine defamation law in Australia and guide the national reform process. After the release of a discussion paper inviting submissions on defamation reform from stakeholders in February 2019, two rounds of consultation are expected during the year and amendments may be enacted by all Australian parliaments after June 2020.

In the meantime, think twice before you like.

Read the complete article from the April 2019 edition of Internet Law Bulletin on Lexis Advance.

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[i]Bolton v Stoltenberg [2018] NSWSC 1518; BC201809495, at [174] and [175].

[ii]Bolton v Stoltenberg [2018] NSWSC 1518; BC201809495, at [174] and [176].

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