The universe of defamation is undoubtedly changing with the rise of social media platforms which can be used by people to vent or express statements in a manner that is less temperate or considered than other more formal means of publication. Online statements, once made, can be difficult to retract effectively, as information travels quickly in the online world, with gossip or salacious statements often going viral. Now more than ever it is possible to publish damaging and misleading comments to an enormous audience. Those who engage in online criticism of others should be careful to ensure that their publications are reasonable or justifiable as the posting, commenting, tweeting or sharing of aggressive, insulting or offensive material can have serious and sometimes unanticipated consequences for those involved.
In the recent decision of Webster v Brewer (No 3) [2020] FCA 1343, the Federal Court of Australia awarded $875,000, including substantial aggravated damages in favour of Nationals Member for Parliament Dr Anne Webster, in response defamatory material published by a "conspiracy theorist", Karen Brewer, who initiated a series of "vile" and "heinous" Facebook posts linking the politician and her husband to a secret criminal network of child abusers.
While this decision has drawn criticism by some in the media (who question "how claims that almost no one saw, and even fewer believed, constituted serious damage to the targets' reputations"),[1] the large quantum was driven by the repetitive nature of wholly unjustified statements, inferred malice, the lack of an apology, no attempt to withdraw the libel and an obsessive and defiant tone which indicated that Ms Brewer may continue to defame the Websters regardless of these proceedings. The decision is by no means a lone ranger.
Aggravated damages aside, there have also been a number of decisions in recent years which have taken into account the fact that the publication of material online may not be viewed as a limited publication and that the grapevine effect can be significant.
When online publications (or widely distributed publications) are the weapon of choice for the publication of defamatory material, such factors are likely to have implications for the assessment of damages, where circumstances of aggravation are applicable.
The decision also serves as a reminder that social media platforms are public domains, and any comments made can have potentially expensive consequences (even if a person shares someone else's material, eg. retweeting on Twitter or includes a hyperlink to material that is defamatory and which refers to an identifiable person).
Seven defamatory posts are made on Facebook
Dr Webster and her husband operate a not-for profit organisation called Zoe Support, founded in 2011, to assist disadvantaged and welfare dependent young mothers (ages 13-25), and to provide pathways to education, training and employment as they embark on their parenting journey.
Between 26 April 2020 and 8 May 2020, Ms Karen Brewer posted seven defamatory publications against the Websters and Zoe Support (Websters), each on her Facebook page. There were three written posts and four videos, posted between 26 April and 8 May 2020.
Throughout these posts, Ms Brewer branded the Websters as participants in a secretive criminal network involved in the sexual abuse of children.
The Websters sued Ms Brewer on the basis that each of the seven posts, which "spread along the grapevine into the Mildura community", were false and untrue. Ms Brewer did not appear at the hearing and did not seek to participate in the proceedings at any stage. The Court noted that she had made no attempt to justify her posts, nor retract them or offer any apology to the Websters, and also observed that social media had, in fact, provided Ms Brewer with a "platform by which she is able to reach suggestible individuals who may believe her claims".
Unsurprisingly, judgment was entered in favour of the Websters, and the Court proceeded to assess the damages to be awarded. In doing so, it highlighted the need to award aggravated damages to the Websters because of the "disgraceful and inexplicable" conduct displayed by the Defendant.
Assessing damages for defamation: the relevant factors
When considering an award of damages for defamation, a Court must ensure that there is an appropriate and rational relationship between the harm sustained by the relevant plaintiff, and the damages awarded (section 34 of the Defamation Act 2005 (Vic)). In Webster, the Court relied upon French v Fraser (No 3) [2015] NSWSC 1807, a case that also involved the internet as a medium for defamatory publications, and outlined the following further relevant matters to be considered:
- the damages must provide consolation for hurt feelings, recompense for damage to reputation and vindication of the plaintiff's reputation;
- a high value should be placed upon the reputation of those whose work and life depend upon their honesty, integrity and judgement;
- damages should be sufficient to "convince a bystander of the baselessness of the charge";
- the extent and seriousness of the defamatory sting should be considered; and
- the distress of family members who were distressed themselves about defamatory publications is also relevant.
The Act also imposes a maximum amount of damages for non-economic loss that may be awarded in defamation proceedings. Currently the maximum awarded is $421,000. The cap may only be exceeded if, the Court is satisfied that the circumstances to which the proceedings relate are such as to warrant an award for aggravated damages.
Assessing damages in the Websters' case
In this case, the Court observed that "The majority of the imputations allege participation in deliberate and heinous criminality and moral depravity. Considered as a whole, they are the most serious kind of defamatory imputations that could be levelled at an individual or a charity".
That said, not all of the relevant publications were reasoned or plausible and Ms Brewer's video posts were described as being "in the nature of rants", which Justice Gleeson considered reasonable people would dismiss as deranged and lacking in credibility. Nevertheless, this did not mean that significant harm could not be caused.
Although none of the defamatory publications identified any sensible basis for what was written, and the lives of decency and good deeds that had long been lived by the Websters meant that the Court thought it was "reasonably unlikely that any but the most suggestible individuals would think the less of them as a result of Ms Brewer’s publications", the Court accepted that the "defamatory publications will probably have been believed by a small but not insignificant segment of the Mildura community". This inference was supported in part by evidence of a lower than usual amount of monthly referrals to Zoe's Support since the some of the publications issued, and a comment on a video that Dr Webster had posted to her own Facebook page which said: “Release the suppression orders thanks. Disgusted in you”.
The Court considered that each of the Websters had been particularly distressed seeing the impact of the defamatory publications on one another, and allowance needed to be made for the "grapevine effect", as well as the sense of hurt, anxiety and sense of indignity felt by each of the Websters.
Given the rather "vile" nature of the publications, the Court determined that as a whole, vindication of the Websters' reputations was of particular importance and it called for an award of substantial damages, particularly in light of the dependency the Websters' respective roles placed on their honesty and integrity. Although Justice Gleeson opined that rational people would regard the posts made by Ms Brewer as "delusional", she accepted that some people may find the vile nature of the publications persuasive, and as such, this made vindication of the Webster's reputations of particular importance and called for an award of aggravated damages.
The extent of publication of the matters complained of was also significant, and they were ultimately removed by Facebook. The videos posted by the Ms Brewer exceeded 1,000 views, and the variety of posts published received in excess of 200 reactions, comments and shares (Mildura's population is over 54,000). The Court was left with little doubt that the defamatory posts had been widely published, and were likely to have spread into the local community to a significant extent.
Finally, the Court was satisfied that each of the Websters had suffered intensely as a result of the publications. In particularly Dr Anne Webster was shocked, traumatised and extremely distressed by the impact of the publications on her professional reputation, both as a social worker and politician. She also provided evidence that it was extremely upsetting to watch her husband's name be tainted. Dr Phillip Webster provided evidence that he experienced physical symptoms of anxiety and was apprehensive about working with patients. Both Websters expressed distress about the impact of the statements on Zoe Support and the ability to continue their philanthropy.
The Court determined that a substantial award of damage was necessary to “nail the lie”, that is, to demonstrate the baselessness of Ms Brewer’s charges and to vindicate the good name of each of the Websters. The fact that Ms Brewer might not be deterred by this proceeding from further defamatory publications concerning the Websters was also a concern.
In ordering Ms Brewer pay to the Websters a total sum of $875,000, along with their legal costs, the Court awarded:
- $350,000 to Dr Anne Webster in relation to 7 defamatory publications;
- $225,000 to Dr Philip Webster in relation to 3 defamatory publications; and
- $300,000 to Zoe Support in relation to 6 defamatory publications.
Although Zoe Support was not a human being capable of being awarded damages for hurt feelings, Justice Gleeson considered that damages were required "to convince a bystander of the baselessness of Ms Brewer’s terrible charges" and "provide recompense for damage to the applicant’s reputation".
Key takeaways from Webster v Brewer
Recent decisions, including this one, serve as a warning that:
- you should think very carefully about what you post or share on social media, regardless of what you may read or hear; and
- the Courts will not shy away from awarding significant damages for defamatory posts and comments on social media platforms which are baseless, repetitive and of a serious kind that have the potential to damage another person's reputation.
In particular, this case emphasises the risk of an award of aggravated damages where those whose work and life depend upon their honesty, integrity and judgment have their reputations stained by insidiously vile allegations that have widespread reach through online platforms.
Anyone considering using the internet as a medium for defamatory publications, particularly those igniting a personal campaign or vendetta against another party, should carefully reconsider the consequences of doing so. Think hard before you click.
[1] Aaron Patrick, Senior Correspondent, Australian Financial Review, Opinion piece titled "An $875,000 payout for a Facebook post no one took seriously?", 23 September 2020. (Mr Patrick acknowledged that in expressing his opinion he had a vested interest, as he is being sued for defamation by Jemma Green, a West Australian technology entrepreneur over two articles published in The Australian Financial Review on December 27, 2018).Back to article
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