A recent Federal Court judgment demonstrates that the Twitterverse can be a very expensive choice for publishing seriously defamatory allegations, even if in only three tweets – especially where no defence is entered (Tribe v Simmons (No 2) [2021] FCA 1164).
Distressing tweets lead to a defamation claim
In April 2021, Ms Olivia Simmons – the sister of NBA star Ben Simmons – published a series of three tweets about her and Mr Simmons' half-brother, Mr Sean Tribe.
Ms Simmons tweeted that Mr Tribe had sexually assaulted her when she was 8 years old, and that caused her to suffer from Post-Traumatic Stress Disorder. In response, Mr Tribe commenced defamation proceedings in the Federal Court three days later on 13 April 2021 asking that the matter be dealt with urgently, on a final basis.
Two days after being served with the statement of claim, Ms Simmons published a further tweet (in response to a post from her family that said the allegations she made never happened and that her brother and entire family deny them) stating(amongst other things):
"You molested me Sean and no amount of Bullshit statements will change my story. YOU MOLESTED ME !!!!!"
Five days later, Ms Simmons published yet another tweet was published on the following terms:
You can't paint me out to be crazy. I have PTSD because you molested me. Yet another black woman being attacked for speaking out about her trauma. Sean Tribe you know what you did and money cannot save you. Medical records do not lie, neither does my flashbacks or behaviour."
Ms Simmons did not file a defence but indicated at the second case management hearing her intention to defend the proceeding and, in effect, file a justification defence. She also indicated that her failure to comply with previous orders was due, among other things, to her difficulty in obtaining legal representation.
Despite receiving extensions of time to file and serve a defence, and the Court arranging for provision of a pro bono certificate to be issued by the Registry to her, Ms Simmons still failed to file a defence. On 25 June 2021, Mr Tribe filed an application for default judgment. Prior to the case management conference at which the application was to be heard, Ms Simmons obtained pro bono representation and her counsel sought a further extension of time on her behalf to file a defence: with Ms Simmons maintaining the position that she would defend the proceeding. Further directions for the defence were then made with a case management hearing listed for 3 August 2021.
On 3 August 2021, defence counsel advised she could no longer act for Ms Simmons as:
- Ms Simmons had informed her that she had received medical advice that it would be contrary to her interests to continue to defend the proceeding; and
- Ms Simmons said that her young daughter had recently had brain surgery, and as a result her attention must be on her child's health and she was not in a position to provide further instructions to counsel.
Understandably, Mr Tribe then pressed his application for default judgment.
In approaching the request for default judgment, Justice Lee noted that it was important for court to draw a distinction between the question as to whether or not (on the one hand) the pleaded imputations were in fact conveyed by the publication, and (on the other hand) whether or not the publications had the capacity to convey the meanings or imputations alleged by the applicant.
After assessing the three tweets independently, and their imputations, Justice Lee found that the sting conveyed by the three tweets were of a substantially similar nature, and that damages would accordingly be assessed in one sum. Pending an assessment of damages, Justice Lee issued an interim injunction on 3 August 2021 restraining Ms Simmons from publishing anything to the effect that:
- Mr Tribe sexually molested Ms Simmons; or
- Mr Tribe is a liar because he denied he sexually molested Ms Simmons.
In doing so, Justice Lee observed (against the backdrop that further tweets having been made by Ms Simmons after the commencement of the proceeding and noting that every opportunity had been given to her to file a defence) that:
"I make this order cognisant of the usual caution that exists in defamation proceedings in granting interlocutory relief by way of restraint, but this is a circumstance where further publications have been made since commencement and despite the Court giving Ms Simmons every opportunity, no defence has been raised (and the imputations are, by their nature, grave ones)."
Assessing the damage caused by the tweets and the firehose effect of Twitter
Ms Simmons did not appear in court when the damages assessment was undertaken on 14 September 2021. The court attempted to contact her by phone three times and in response to email, she said that she was not appearing because she had a "medical appointment". In the absence of any evidence or application for an adjournment, Justice Lee was not prepared to find that her nonappearance was anything other than a further indication of an unwillingness to participate in the proceeding and to take any active step to defend the claim brought by Mr Tribe.
Turning to the issue of damages, he articulated the approach to be taken to the award of compensatory damages (including aggravated damages) as set out in his recent decision of Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15 – a passage which repays reading independently of this article.
The oral and affidavit evidence received by the court, unsurprisingly, demonstrated a very high degree of subjective hurt and distress given the nature of the accusations made. Additionally an element of sadness and perplexity was also present given that the publisher was someone with whom the plaintiff had previously shared a familial relationship.
Of greater significance is that the fact that the allegations were published in such a way as to result in very widespread and highly damaging publicity. The allegations were some of the most serious that could be levelled against a person, and no matter what Mr Tribe did, the risk was that there would always be some people who believed that he had conducted himself in a depraved manner. The effect of this on Mr Tribe was that he did not want to leave his home, concerned about engaging others in public. It gave rise to depression and anxiety.
At the time the tweets were published:
- Mr Tribe had a personal and professional reputation of a high order, both in Australia and the United States.
- Ms Simmons had 12,896 Twitter followers. However, there was significant "engagement" with her various tweets, including favourites, retweets and mentions, which went on to be published in Australia, the UK and the US, with the potential reach of many of those publications extending to the millions.
Following publication of the tweets, Mr Tribe received a number of abusive messages on both Twitter and Instagram, which made him feel threatened and fearful for his safety and that of his partner and daughter. For example, Mr Tribe was messaged directly saying: “Weird ass. You’re sick. You don’t deserve to get help just straight to prison then hell. I wonder what your [sic] doing to your kid.” Other cruel and vicious responses are identified in the judgment.
Justice Lee observed that:
- Twitter provides a "firehose" – which conveys a large volume of data in real-time velocity, and that Twitter has a large global base of active users, including 4.6 million users in Australia alone.
- By its very nature, Twitter encourages the dissemination, by repetition, of messages sought to be conveyed by users. It provides a modern-day example of the "grapevine effect".
The court noted that the case provided a graphic illustration as to how only three social media messages can spread – including the material substance of the defamation being republished in newspapers and online across Australia, on Fox Sports and in the New York Post. Other evidence was received of close family friends being approached by numerous people within the Philadelphia basketball community and the commercial network within which Mr Tribe operated.
In the circumstances, the case presented a real need for damages to provide a proper vindication of reputation. It was also a matter in which aggravated damages were appropriate where the conduct was regarded objectively as being improper and unjustifiable.
Given the extreme level of subjective hurt and the particular need for vindication in the circumstances of these publications, the court awarded a damages sum of $550,000 (including aggravated damages), noting that anything less would be insufficient. Justice Lee also ordered a permanent injunction (together with an appropriate penal notice should there be contempt), preventing Ms Simmons from publishing a matter in any form to the effect that had been molested by Mr Tribe, or that Mr Tribe is a liar because he denied he sexually molested Ms Simmons.
Key takeaways for social media users
It is not the number of tweets that count, but the damaging nature of their content and their reach.
Publishers of defamatory content should therefore think twice before making disparaging comments on social media platforms that provide access to extremely large audiences because the grapevine effect can magnify the impact of seriously defamatory comments – particularly where the victim is a person who has a widely known and highly regarded reputation
Otherwise, keyboard warriors on social media must be prepared to justify their statements with cogent evidence before a court or tribunal or risk a significant damages award and costs order against them.
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