I heard it through the grapevine: social media as a vehicle of defamation

Social media provides a widely accessible platform for information to spread. In this digital age, it has revolutionised the manner and speed in which information is acquired, communicated and dispersed. A quick tweet can significantly influence an audience. In 2015, a tweet about buying shares on Twitter saw Twitter’s share price increase by 5 per cent that day.[1] In 2013, a tweet from an investor about their position in Apple saw stock prices increase by 4.75 per cent.[2]  Opinions that are shared hold influence.

Posting on online mediums is instantaneous, interjurisdictional and undoubtedly inviting to an individual wanting to get a message across. It is when this message is defamatory in nature that issues arise.

Any material posted online is subject to the grapevine effect. That is, the Courts recognition of the widespread nature that an online publication has which causes difficulty in proving damages and measuring the extent of the injury.[3] If proven to have that effect, Courts have in recent years increased their award of general damages. Severe words by Elkaim DCJ reiterate this sentiment in Mickle v Farley.[4]His Honour remarked that “when defamatory publications are made on social media it is common knowledge that they spread… [t]heir evil lies in the grapevine effect that stems from the use of this type of communication”.[5]

The Courts deliberation of the grapevine effect acknowledges that the dissemination of defamatory statements through social media makes tracking difficult. It spreads information to a wider and indeterminate class of people and holds permanency through the digital footprint it leaves.

The following defamation cases considered the grapevine effect in their assessment of general damages:

Rothman J in Polias v Ryall[6] considered the grapevine effect in a defamation case where rumours circulated that the plaintiff, a poker player, was a thief. The plaintiff took his explanation of events to Facebook, where subsequent defamatory imputations occurred in the comments. Unique to this case was the involvement of the third Defendant, a person who did not witness the originating incident but repeated the accusation orally at a dinner with members of the poker community based on information read on social media.[7] In doing so, he demonstrated the grapevine effect. The significant amount of $340,000 in damages was awarded to the plaintiff collectively by the four defendants that posted on Facebook.

Dabrowski v Greeuw[8]is a case between estranged spouses where one accused the other, on a Facebook post, of domestic violence. This case stressed the potential damage that social media posts hold when taken out of context. As the post was on a ‘public’ Facebook page, Bowden DCJ contrasted the ability for anyone to access the page with that of a private group message.[9] His Honour noted that the grapevine effect meant that assertions about the plaintiff’s character were repeated without revealing the source as a Facebook post made by an estranged wife. He emphasised the weight that this resulting grapevine effect has when assessing general damages, awarding $12,500.00 in damages. [10]

As technology evolves and the world becomes more interconnected, Courts will see more cases demonstrating the grapevine effect. This will impact damages, both in their awards and how they are assessed, increasing the stakes for authors who wish to publish such defamatory material.

If you have been defamed on social media to an extent that affects livelihood and is wide-spread, contact our client engagement team to make an appointment with one of our litigation lawyers.

This article was prepared by James Tan (Director).

[1] @Steven_Ballmer (Steven Ballmer) (Twitter, 16 October 2015, 3:13pm AEST) <https://twitter.com/steven_ballmer/status/654887753893543936>; Jen Wieczner, ‘How Investors Are Using Social Media to Make Money’, Fortune (online), 7 December 2015 <http://fortune.com/2015/12/07/dataminr-hedge-funds-twitter-data/>.

[2] @Carl_C_Icahn (Carl Icahn) (Twitter, 13 August 2013, 11:21am) <https://twitter.com/carl_c_icahn/status/367350206993399808>; James W Manning, ‘Apple shares jump after Carl Icahn tweets’, The Sydney Morning Herald, 14 August 2013 <https://www.smh.com.au/technology/apple-shares-jump-after-carl-icahn-tweets-20130814-hv1de.html>.

[3] Andrew Tettenborn and David Wilby (eds), The Law of Damages (LexisNexis, 2nd ed, 2010) 436 [18.11]. See also Michael Douglas, ‘Their evil lies in the grapevine effect’: Assessment of damages in defamation by social media’ (2015) 20 Media and Arts Law Review 367.

[4] [2013] NSWDC 295 (29 November 2013).

[5] Ibid [21].

[6] [2014] NSWSC 1692 (28 November 2014).

[7] Ibid [58].

[8] [2014] WADC 175 (22 December 2014).

[9] Ibid [254].

[10] Ibid [268]

 

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