image-sharing board 4chan, anonymous users known as 'anons' share notoriously offensive content in order to impress one another. 79. The higher propensity ...
Sydney Law School Legal Studies Research Paper No. 16/61 July 2016
‘Their Evil Lies in the Grapevine Effect’: Assessment of Damages in Defamation by Social Media Michael Douglas This paper can be downloaded without charge from the Social Science Research Network Electronic Library at: http://ssrn.com/abstract=2811967
Electronic copy available at: http://ssrn.com/abstract=2811967
‘Their evil lies in the grapevine effect’: Assessment of damages in defamation by social media Michael Douglas The number of cases of defamation by social media is growing. This article examines the principles of assessment of damages as they apply to those cases. In particular, the article examines the concept of the ‘grapevine effect’: a metaphor used to explain the basis for recovery of general damages for defamation. The grapevine effect has been deployed to notable effect in recent cases of publication by social media. The article argues that the role of the ‘grapevine effect’ reflects the purposes of awards of damages for defamation in light of the unique characteristics of social media. In Mickle v Farley1 the plaintiff was awarded $105 000 damages for defamatory publications made on Facebook and Twitter. In the course of assessment of damages Elkaim DCJ stressed 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’.2 However, the ‘grapevine effect’ is not an exclusive characteristic of the tweet or the Facebook post. Rather, it is a metaphor used to explain the basis for recovery of general damages for defamation.3 Advances in technology will give that metaphor an increasing role to play. With a recording device and internet access in every pocket, defamatory material can be easily recorded, uploaded, and copied ad infinitum. Any defamatory publication can be lost on the grapevine and into digital eternity. 4 Are original defamatory publications on social media distinguishable? Does the grapevine effect play a unique role in cases of defamation by social media? This is the focus of this article. The first part of the article locates the concept of the ‘grapevine effect’ in the task of assessment of damages. The second part summarises relevant cases of defamation by social media. The third part evaluates the principles that emerge from those cases, in light of the purposes of an award of damages for defamation. The article concludes by considering the future of assessment of damages in an increasingly interconnected environment.
Identifying the grapevine effect A reputation is a valuable thing, but its value is difficult to measure.5 When a reputation is injured, the quantum of damages necessary to compensate the plaintiff is
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[2013] NSWDC 295 (29 November 2013). Ibid [21]. 3 Palmer Bruyn & Parker v Parsons Pty Ltd (2001) 208 CLR 388, 416 [88] (Gummow J) (‘Palmer Bruyn’). 4 David Lindsay, ‘The “Right to Be Forgotten” in European Data Protection Law’ in Normann Witzleb et al, Emerging Challenges in Privacy Law: Comparative Perspectives (Cambridge, 2014) 290, 293. 5 Cassell & Co Ltd v Broome [1972] AC 1027, 1072 (Lord Hailsham), cited in Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225, 241 (Hutley JA). 2
1 Electronic copy available at: http://ssrn.com/abstract=2811967
incapable of precise calculation.6 The difficulty was described by Lord Atkin in Ley v Hamilton: ‘[i]t is impossible to track the scandal, to know what quarters the poison may reach.’7 This creates difficulties for proving damage, and for quantifying the extent of the injury.8 Thus, general damages for defamation are described as ‘at large’, awarded for injury to reputation at large.9 In contrast, special damage is more amenable to precise calculation. Special damages are awarded for special damage directly and naturally resulting from a defamatory publication.10 For example, special damage may include loss of employment or loss of earning capacity.11 Aggravated damages are different again, and awarded to increase the compensatory damages available to the plaintiff as a result of aggravating conduct of the defendant which increases the harm suffered.12 This article is predominantly concerned with assessment of general damages in defamation. The difficulty of tracking the scandal is also the very reason that defamatory statements are harmful. As Bingham LJ put it in Slipper v BBC: ‘defamatory statements are objectionable not least because of their propensity to percolate through underground channels and contaminate hidden springs’.13 This must be taken into account in assessing general damages for defamatory publications. A central purpose of an award of damages is to vindicate the plaintiff in the eyes of the public.14 The award must be ‘sufficient to convince a bystander of the baselessness’ of the accusation, in the event that the accusation, having spread along the ‘grapevine’, emerges ‘from its lurking place at some future date’.15 Thus the ‘grapevine effect’ is the realisation of a defamatory statement’s propensity to percolate underground, and to contaminate hidden springs. The expression denotes the way that defamatory publications can spread. 16 It is ‘the realistic recognition by the law that, by the ordinary function of human nature, the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published’.17 It must be taken into account in assessing general damages for defamation, in order to fulfill the purposes of the award.18 However, the grapevine effect will not operate in all cases.19 It ‘must originate, or spring, from the proven publication’ in order for it to affect the assessment of damages in respect of that publication.20 In Roberts v Prendergast the appellant 6
Ibid; Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 (24 December 2002) [1315] (Beazley, Giles and Santow JJA). 7 (1935) 153 LT 384, 386. 8 Andrew Tettenborn and David Wilby (eds), The Law of Damages (LexisNexis, 2nd ed, 2010) 436 [18.11]. 9 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, 151 (Windeyer J). 10 Coroneo v Kurri Kurri and South Maitland Amusement Co Ltd (1934) 51 CLR 328, 343 (Rich, Evatt and McTiernan JJ). 11 Cf Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519, 559 (Gaudron and Gummow JJ). 12 Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 254, 263 (Knox CJ, Gavan Duffy and Starke JJ); Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327, 370 (Heydon J). 13 Slipper v BBC [1991] 1 QB 283, 300 (Bingham LJ). 14 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, 150 (Windeyer J). 15 Crampton v Nugawela (1996) 41 NSWLR 176, 195 (Mahoney A-CJ), citing Cassell & Co Ltd v Broome [1972] AC 1027, 1071 (Lord Hailsham). 16 Palmer Bruyn (2001) 208 CLR 388, 416 [88] (Gummow J). 17 Belbin v Lower Murray Urban and Rural Water Corporation [2012] VSC 535 (9 November 2012) [217] (Kaye J). 18 Considered below. 19 Palmer Bruyn (2001) 208 CLR 388, 416 [89] (Gummow J). 20 Belbin v Lower Murray Urban and Rural Water Corporation [2012] VSC 535 (9 November 2012) [218] (Kaye J).
2 Electronic copy available at: http://ssrn.com/abstract=2811967
challenged the trial judge’s reliance on the ‘grapevine effect’,21 arguing that there was no evidentiary basis for regarding it as a cause of harm to the respondent’s reputation.22 The appeal failed, as there was such an evidentiary basis.23 If it can be shown that an original, defamatory publication caused a grapevine effect, it ought to increase the award of general damages, 24 providing for an appropriate rational relationship between the harm sustained and the amount awarded.25 As explained below, the grapevine effect can perform other roles in the assessment of damages in cases of defamation by social media.
The growing case law The number of cases of defamation by social media is growing.26 This part of the article focuses on those cases that have directly considered the issue of the assessment of damages in this context.
Mickle v Farley Mickle v Farley27 gained attention as the first Australian award for defamation-bytweet, and for the large sum of damages awarded.28 While barely a year out of high school, the defendant made defamatory comments about a teacher of his former school on Facebook and Twitter. The publications had a devastating effect on the plaintiff, causing her to take sick leave. In the reasons for assessment of damages, Elkaim DCJ distinguished ‘compensatory damages’ from aggravated damages.29 Compensatory damages were assessed at $85 000. Aggravated damages were justified because of the conduct of the defendant in response to the claim:30 the defendant initially pleaded a defence of truth, which was later replaced by a defence of qualified privilege. The defence was struck out, and ultimately the defendant failed to appear. Aggravated damages were assessed at $20 000. In concluding, Elkaim DCJ commented on the ‘evil of the grapevine effect’, as quoted above. He limited those comments to what he described as compensatory damages.31 So in this case, the fact of publication by social media was not an aggravating factor. Rather, the mode of publication played an indeterminate role in the assessment of general, compensatory damages.
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See Prendergast v Roberts [2012] QSC 144 (1 June 2012) [31] (Mullins J). Roberts v Prendergast (2014) 1 Qd R 357, 362 [30]–[31] (Gotterson JA). 23 Ibid 362 [30]–[37]. 24 See, eg, Sleeman v Tuloch Pty Ltd (No 3) [2013] NSWDC 92 (19 June 2013) [206] (Gibson DCJ). 25 Applying Civil Wrongs Act 2002 (ACT) s 139H; Defamation Act 2006 (NT) s 34; Defamation Act 2005 (NSW) s 37; Defamation Act 2005 (Qld) s 37; Defamation Act 2005 (SA) s 35; Defamation Act 2005 (Tas) s 37; Defamation Act 2005 (Vic) s 37; Defamation Act 2005 (WA) s 37. 26 See Jennifer Ireland, ‘Defamation 2.0: Facebook and Twitter’ (2012) 17 Media & Arts Law Review 53, 57–62; David Rolph, ‘Defamation by Social Media’ (2013) 114 Precedent 16. 27 [2013] NSWDC 295 (29 November 2013). 28 See, eg, Michael Douglas, ‘The High Price of Defamation by Social Media in Mickle v Farley’ (2014) 19 Media & Arts Law Review 300. 29 Mickle v Farley [2013] NSWDC 295 (29 November 2013) [13], [17]. 30 Ibid [17]. 31 Ibid [21]. 22
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Polias v Ryall Polias v Ryall32 concerned a dispute between poker players, which was determined by the Supreme Court of New South Wales in November 2014. The plaintiff made a Facebook post to explain events that occurred in Las Vegas, which involved some of the defendants. The eight defamatory publications included comments on the plaintiff’s Facebook post, as well as a separate Facebook status, and a number of oral publications.33 They contained imputations that the plaintiff was a thief. Each of the four defendants was ordered to pay a substantial sum of damages, resulting in $340 000 for the plaintiff.34 In assessing damages Rothman J took into consideration the ‘confined nature of the readership’ of the Facebook publications, and held that it made the plaintiff’s hurt and distress even greater than would be the case if the publications were made to persons who did not know the plaintiff on a regular basis.35 That readership was the poker playing community. In that context, the ‘grapevine effect [was] most significant’.36 Persons not included in the Facebook thread containing the defamatory comments ‘would have heard of the allegations … through the grapevine effect’.37 The oral publications were described as ‘examples of and evidence of the huge grapevine effect that has occurred in relation to the imputations published about the plaintiff’.38 For example, the third defendant was not a witness to any of the events in Las Vegas, and repeated a defamatory accusation on the basis of that which she had heard or read, ‘presumably on Facebook’.39 Aggravated damages were awarded against each of the defendants. In the discussion of the plaintiff’s ‘compelling’40 submissions on point, Rothman J noted that ‘[t]he publications remain on Facebook and, despite these proceedings and the admissions otherwise made, have not been removed’.41 Polias v Ryall is the best Australian example to date of the role of the grapevine effect in cases of defamation by social media. In the wake of his victory, the plaintiff reportedly said: ‘People should be very careful about what they write on social media … it spreads like wildfire and it can be really damaging to someone because it stays on Facebook for a long time.’42
Dabrowski v Greeuw In December 2014, the District Court of Western Australia determined a dispute between estranged spouses. In Dabrowski v Greeuw the defendant posted a Facebook
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[2014] NSWSC 1692 (28 November 2014). Ibid [7]–[16]. 34 They were also ordered to pay costs on an indemnity basis: Polias v Ryall (No 2) [2015] NSWSC 1 (2 January 2015). 35 Polias v Ryall [2014] NSWSC 1692 (28 November 2014) [74]. 36 Ibid [78]. 37 Ibid [95]. 38 Ibid [87]. 39 Ibid [58]. 40 Ibid [91]. 41 Ibid [92]. 42 Philip Conneller, Australian Poker Pro Nicholas Polias Gets ‘Thief’ Defamation Award (3 December 2014) Cardschat . 33
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status that accused the plaintiff of abuse and domestic violence.43 A defence of justification failed. Bowden DCJ took account of the grapevine effect in assessing general damages at $12 500.44 His Honour cited Mickle v Farley and held that: Defamatory publications on social media spread easily by the simple manipulation of computers. A public Facebook page is able to be viewed worldwide by whoever clicks on that page and the grapevine effect stemming from the use of this type of medium must be considered …45
The judgment contains a number of points of interest to the issue of assessment of damages in the particular context of social media defamation. Firstly, Bowden DCJ noted that the post appeared on the ‘public’ Facebook page of the defendant, and that it ‘could be seen by anyone accessing that page’.46 This point was considered together with evidence of the time that the post remained online, and as relevant to the extent of publication.47 In the future, a more private communication on a social media platform — for example, a group message (cf post) on Facebook — may be distinguished from publications made in more open forums, such as posts on ‘public’ Facebook pages or unprotected tweets on Twitter. Secondly, the defendant argued that she thought her Facebook settings were private.48 This was not taken into account in assessment of the extent of publication, reflecting the position in the Uniform Defamation Acts that a defendant’s state of mind should be disregarded in the assessment of damages if it did not affect the harm sustained by the plaintiff.49 The Court held that the defendant was responsible for her defamatory post, even if she was unfamiliar with Facebook.50 This point may prove to be a problem for those who are tech-challenged and prone to anger. Thirdly, Bowden DCJ stressed that the context of the defamation must always be considered.51 Here, ‘the grapevine effect could mean that the defamatory imputations are repeated without revealing that the source was a Facebook post made by an estranged wife and this must not be overlooked when assessing damages’.52 The potential for social media posts to be shared out of context increases the potential for those posts to be damaging.
Cairns v Modi The UK has seen more cases of defamation by social media.53 For present purposes, the most salient case is Cairns v Modi,54 in which a well-known New Zealand cricketer was awarded £90 000 damages for a defamatory tweet and an oral 43
[2014] WADC 175 (22 December 2014) [164]–[174] (Bowden DCJ). Ibid [259]–[268]. 45 Ibid [265]. 46 Ibid [3], [254]. 47 Ibid [254]–[258]. 48 Ibid [129], [145]. 49 Eg, Defamation Act 2005 (WA) s 36. 50 Dabrowski v Greeuw [2014] WADC 175 (22 December 2014) [147]. 51 Ibid [266], citing Burstein v Times Newspapers Ltd [2001] 1 WLR 579. 52 Ibid [268]. 53 See, eg, McAlpine v Bercow [2013] EWHC 1342 (QB) (24 May 2013); Applause Stores Productions Ltd v Raphael [2008] EWHC 1781 (QB) (24 July 2008); Cooper v Turrell [2011] EWHC 3269 (QB) (12 December 2011); Royal Brompton & Harefield NHS Foundations Trust v Shaikh [2014] EWHC 4331 (QB) (19 December 2014). 54 [2012] EWHC 756 (QB) (26 March 2012). 44
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publication confirming the contents of the tweet. Bean J quoted the well-known dictum of Lord Atkin in Ley v Hamilton and held that in the 21st century, ‘the poison tends to spread far more rapidly’.55 On appeal, the Court emphasised this point: [W]e recognise that as a consequence of modern technology and communication systems any such stories will have the capacity to ‘go viral’ more widely and more quickly than ever before. Indeed it is obvious that today, with the ready availability of the world wide web and of social networking sites, the scale of this problem has been immeasurably enhanced … this percolation phenomenon is a legitimate factor to be taken into account in the assessment of damages.56
In upholding the award, the Court recognised that the defamatory accusations would ‘percolate’ on the internet, reaching beyond the 65 immediate recipients of the tweet.57
The different faces of the grapevine effect In Dabrowski v Greeuw there was no evidence that the defamatory post was actually shared by its recipients.58 Similarly, in Mickle v Farley, the Court made no reference to such evidence. Still, in each case, the court took the grapevine effect into account in the assessment of damages. How can these cases be reconciled with the judgment of Gummow J in Palmer Bruyn, which held that there must be evidence of an actual grapevine effect in order for the concept to impact the assessment of damages?59 The answer lies in that an award of damages for defamation serves more than one purpose. It serves three: (1) consolation for the hurt and distress caused; (2) reparation for the harm done to reputation; and (3) vindication of the plaintiff’s reputation to the public.60 Similarly, the grapevine effect can inflict damage in more than one way. First of all, it can cause distress.
Distress In Mickle v Farley, Elkaim DCJ held that it is ‘common knowledge’ that defamatory matter spreads on social media.61 For a person defamed on social media, that knowledge would be distressing. Although there was no evidence of spread on the grapevine in Mickle v Farley, there was evidence of the plaintiff’s considerable distress.62 A court can take a plaintiff’s distress into account to afford an appropriate and rational relationship between the damages awarded and harm caused: damages can be awarded for injury to the plaintiff’s feelings.63 Thus the grapevine effect can play a unique role because people believe that the grapevine effect is particularly acute on
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Ibid [123]. Cairns v Modi [2013] 1 WLR 1015, [27] (Neuberger LCJ). 57 Ibid [26]–[27] (Neuberger LCJ). 58 [2014] WADC 175 (22 December 2014) [258]. 59 Palmer Bruyn (2001) 208 CLR 388, 416 [89]. 60 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, 60–1 (Mason CJ, Deane, Dawson and Gaudron JJ); Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, 150 (Windeyer J). 61 Mickle v Farley [2013] NSWDC 295 (29 November 2013) [21]. 62 Ibid [11]. 63 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, 71 (Brennan J), 105 (McHugh J). 56
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social media. This is a sound application of established principle to changing circumstances. Of course, the ability to copy and share with ease is not unique to social media platforms. It is characteristic of the broader internet. But one point of distinction is to whom the content is shared when it is shared on social media. On social media platforms information is often shared between people who are close. In Dabrowski v Greeuw,64 the recipients were the defendant’s Facebook ‘friends’, which included family and close friends of the plaintiff. In Polias v Ryall,65 defamatory comments were made in response to a Facebook post made by the plaintiff. The recipients would include both the defendants’ friends, and the plaintiff’s friends, all of whom were members of the poker-playing community. As was held in Polias v Ryall, if a plaintiff knows that a defamatory accusation was shared to people that the plaintiff is close to, that sharing will be more distressing.66 On other social media platforms, the publisher might not know the recipients personally. But on those impersonal platforms, defamatory publications can reach a wide audience. For example, in Pedavoli v Fairfax Media Publications Pty Limited,67 the Court considered a tweet linking a defamatory article in the electronic edition of the Sydney Morning Herald. It reached an estimated 1155 followers,68 and contributed to a judgment sum of $350 000. However, the more impersonal nature of the platform might result in relatively lower damages awards. Recently, in Hockey v Fairfax Media Publications Pty Limited, the Federal Court considered defamatory tweets to about 280 000 followers.69 White J held that it is unrealistic to suppose that most Twitter users would read every one of their tweets, and that many recipients would not have ‘taken in’ the defamatory matter.70 Still, the Treasurer was awarded $80 000 in respect of the defamatory tweets.71 The massive audience for these kinds of publications creates room for the grapevine effect to be engaged. The thought of sharing by an initial group of people that large would also cause considerable distress. The bridge between these cases is the common knowledge described in Mickle v Farley.72 If this idea gains ascendency, the ‘grapevine effect’ concept may be deployed to inflate damages for defamation in social media cases, even in the absence of evidence of the spread of the defamatory matter, when plaintiffs can establish that their feelings were injured by the defamatory publication. Although this development is sound in terms of established principles, it is worth asking whether it is desirable for awards to increase in the absence of evidence of an actual spread along the grapevine. Instead, an award of aggravated damages could account for the distress caused by the mode of publication. Aggravated damages for defamation by social media are considered below.
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[2014] WADC 175 (22 December 2014). [2014] NSWSC 1692 (28 November 2014). 66 Ibid [74]. 67 [2014] NSWSC 1674 (27 November 2014). 68 Ibid [57]. 69 [2015] FCA 652 (30 June 2015). 70 Ibid [452], [517]. 71 For further analysis, see Michael Douglas, ‘Defamation by Tweet in Hockey v Fairfax’ (2015) Internet Law Bulletin (forthcoming). 72 See Mickle v Farley [2013] NSWDC 295 (29 November 2013) [21]. 65
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Damage caused by actual spread on the grapevine A defamatory imputation is only harmful to a plaintiff’s reputation because it is published. As a general rule, the more people that view a defamatory publication, the greater the harm that will be done to the plaintiff’s reputation. 73 Defamation by social media is potentially more harmful because there is potential for the defamatory imputation to be seen by more people. Social media is a unique form of publication because of its tendency to facilitate sharing. In Belbin v Lower Murray Urban and Rural Water Corporation, Kaye J described the grapevine effect as the result of ‘human nature’.74 Social science lends support to the claim that it is in our nature to share on social media, and particularly when the information is salacious. Individuals will share out of ‘perceived online attachment motivation’: ‘the degree to which an individual believes that he or she can improve his or her social interaction and the sense of communion with others [online]’.75 Thus the third defendant in Polias v Ryall76 shared out of a sense of attachment to the poker players defaming the plaintiff. Because social networks are often comprised of persons who know each other, recipients of publications through these networks will be more likely to share the defamatory content. Social scientists argue that even in less personal social networks, information is shared in pursuit of some kind of status.77 The prevalence of news retweeting lends support to that view. On the news-sharing and social networking website reddit, users share in order to earn the approval of other users. Approval is provided in the form of ‘upvotes’ and ‘karma’: measures that have little value external to the site.78 On the image-sharing board 4chan, anonymous users known as ‘anons’ share notoriously offensive content in order to impress one another.79 The higher propensity for defamatory content to be shared when posted on social media should correspond to an increase in actual sharing. If a publication is posted on social media, it is likely that it will reach more recipients than if it was not posted there. So all other things being equal, a defamatory matter published by social media will inflict more damage than comparable defamatory matter. This should be reflected in higher damages awards for defamation by social media.
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Applying Civil Wrongs Act 2002 (ACT) s 139H; Defamation Act 2006 (NT) s 34; Defamation Act 2005 (NSW) s 37; Defamation Act 2005 (Qld) s 37; Defamation Act 2005 (SA) s 35; Defamation Act 2005 (Tas) s 37; Defamation Act 2005 (Vic) s 37; Defamation Act 2005 (WA) s 37. 74 [2012] VSC 535 (9 November 2012) [217]. 75 Will WK Ma and Allan HK Yuen, ‘Understanding Online Knowledge Sharing: An Interpersonal Relationship Perspective’ (2011) 56(1) Computers and Education 210, 213; Will WK Ma and Albert Chan, ‘Knowledge Sharing and Social Media: Altruism, Perceived Online Attachment Motivation, and Perceived Online Relationship Commitment’ (2014) 39 Computers in Human Behaviour 51, 52. 76 [2014] NSWSC 1692 (28 November 2014). 77 See Chei Sian Lee and Long Ma, ‘News Sharing in Social Media: The Effect of Gratifications and Prior Experience’ (2012) 28 Computers in Human Behaviour 331, 333–4. 78 See Reddit , cf Jay Caspian Kang, ‘Should Reddit Be Blamed for the Spreading of a Smear?’, The New York Times (online), 25 July 2013 . 79 See 4chan ; see further Caitlin Dewey, ‘Absolutely Everything You Need to Know to Understand 4chan, the Internet’s Own Bogeyman’, The Washington Post (online), 25 September 2014 .
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However, Gummow J’s point is important here.80 Although the ‘tendency to be shared’ may be reflected in damages awards over a period of time, in each individual case, the court must look at the connection between the actual publication and the actual harm caused. In the absence of evidence of the spread of the defamation, the damages award should not refer to the grapevine effect in assessing damages for the harm done to the plaintiff’s reputation. However, the grapevine effect can play an important role in assessing damages corresponding to future damage to the plaintiff’s reputation.
Future damage Leading statements on the grapevine effect are directed towards the potential for longterm damage, and the need for vindication if that potential is realised. In Cassell & Co Ltd v Broome, Lord Hailsham held that if defamatory matter ‘emerges from its lurking place at some future date, [the plaintiff] must be able to point to a sum awarded … sufficient to convince a bystander of the baselessness of the charge’.81 Defamatory matter is more likely to emerge from its lurking place after the publication on social media, for at least three reasons. Firstly, defamatory content is more likely to be shared beyond the original recipients, as outlined above. Secondly, because of the internet’s vast memory capacity, the defamatory matter can be re-discovered and re-posted.82 Even if a post is taken down, it may have been cached. If the post was not cached, it may still have been copied or forwarded by an original recipient.83 As Lidsky put it, in a passage approved by a majority of the Ontario Court of Appeal: ‘The extraordinary capacity of the Internet to replicate almost endlessly any defamatory message lends credence to the notion that “the truth rarely catches up with a lie”.’84 Thirdly, search functionality encourages that kind of re-discovery. Many major social media sites have some form of search functionality built into them. Facebook is an important example: Facebook Search is an attempt to challenge Google by linking search to real people and their preferences.85 The prospect of discovery-by-search has already impacted an assessment of damages. In Applause Stores Productions Ltd v Raphael,86 the defendant made a fake and defamatory Facebook profile of the plaintiff. The Court held that anyone searching for the plaintiff would find the defamatory material without difficulty.87 If a defamatory publication does emerge from the depths of social media, it is likely to be damaging. Online content is often taken at face value,88 even though
80
See Palmer Bruyn (2001) 208 CLR 388, 416 [89]. [1972] AC 1027, 1071; see also Crampton v Nugawela (1996) 41 NSWLR 176, 195 (Mahoney ACJ); Roberts v Prendergast (2014) 1 Qd R 357, 356–7 [33] (Gotterson JA). 82 See Lindsay, above n 4, 293. 83 Barrick Gold Corporation v Lopehandia (2004) 71 OR (3d) 416, [32] (Blair JA). 84 Lyrissa Barnett Lidsky, ‘Silencing John Doe: Defamation and Discourse in Cyberspace’ (2000) 49 Duke Law Journal 855, 864, cited in Barrick Gold Corporation v Lopehandia (2004) 71 OR (3d) 416, [32] (Blair JA). 85 See Facebook, Facebook Search . 86 [2008] EWHC 1781 (QB) (24 July 2008). 87 Ibid [78]. 88 Barrick Gold Corporation v Lopehandia (2004) 71 OR (3d) 416, [34] (Blair JA). 81
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publications can be made carelessly.89 The re-discovery of defamatory content out of context can increase the damage caused by an already damaging publication.90
Summing up on the grapevine effect in the assessment of compensatory damages In some cases, there will be no evidence that publication by Facebook caused the plaintiff any distress. In others, there will be no evidence that a publication by Twitter was actually shared. However, the prospect of future sharing will always be there. The most salacious content will be effectively permanent. For example, Jennifer Lawrence will have a very difficult time removing her nude pictures from every dark corner of the internet. Although most defamatory publications would be shared far less, the prospect of digital permanency hangs over every piece of information on the internet.91 Accordingly, the grapevine effect can play a role in the assessment of damages in every case of defamation by social media.
Aggravation? A court may award aggravated damages if the conduct of the defendant increased the hurt suffered by the plaintiff,92 and was improper, unjustifiable, or lacking in bona fides.93 The relevant conduct includes the way the defamatory matter was published and the defendant’s subsequent conduct.94 The mode of publication can be treated as an aggravating factor if intended to inflict maximum damage to the plaintiff’s reputation, or to cause distress.95 The ‘common knowledge’ that material spreads on social media could support an argument for aggravated damages directed primarily at the mode of publication. However, an award of aggravated damages does not depend on the defendant’s intent. A reckless or negligent publication may justify an award of aggravated damages. 96 It could be argued that, given the propensity for information to be shared, defamatory publications made by social media will tend to be reckless. Further, a failure to remove defamatory content from social media on request could be treated as subsequent aggravating conduct. This point impacted the award of aggravated damages in Polias v Ryall.97 Similarly, in Cripps v Vakras, the maintenance of defamatory articles on websites for a period of years resulted in
89
Cf Crespin v Channel Seven Sydney Pty Ltd [2015] NSWDC 24 (30 January 2015) [30], where Gibson DCJ referred to the ‘highly informal language of social media’ in Polias v Ryall [2014] NSWSC 1692 (28 November 2014), and contrasted the language of a media investigative report. Words can be defamatory in one context, but not in another. 90 Dabrowski v Greeuw [2014] WADC 175 (22 December 2014) [266]–[268] (Bowden DCJ). 91 See Lindsay, above n 4, 293–6. 92 Rookes v Barnard [1964] AC 1129, 1121 (Lord Devlin). 93 Triggell v Pheeney (1951) 82 CLR 497, 514 (Dixon, Williams, Webb and Kitto JJ). 94 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, 71 (Brennan J). 95 Waterhouse v Broadcasting Stations 2GN Pty Ltd (1985) 1 NSWLR 58, 75 (Hunt J). 96 Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225, 244 (Hutley JA), cf a publication that is ‘reckless’ as to the truth or falsity of defamatory imputations: Roberts v Bass (2002) 212 CLR 1, 34 [84] (Gaudron, McHugh and Gummow JJ), cited in Lewincamp v ACP Magazines Ltd [2008] ACTSC 69 (23 July 2008) [232] (Besanko J). 97 [2014] NSWSC 1692 (28 November 2014) [92]–[93].
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significant awards of aggravated damages.98 In contrast, no aggravated damages were awarded in Dabrowski v Greeuw, in circumstances where the defendant promptly removed the post upon receipt of a concerns notice.99 As aggravated damages may take the award beyond the statutory cap on compensation,100 and with the growth of defamation by social media, these arguments may be seen more often in the future. Given the statutory prohibition on awards of exemplary damages for defamation, it will be important to maintain the distinction between aggravated and exemplary damages for defamation by social media.101 It must be remembered that aggravated damages are compensatory; they should not be awarded to punish a defendant for posting the content on social media.102
Looking forward The part above explains that the ‘grapevine effect’ concept can play at least three roles in defamation cases. Firstly, the thought of the spread of a defamatory accusation on the grapevine can injure the plaintiff’s feelings. Secondly, the actual spread of that defamatory accusation on the grapevine can cause damage to the plaintiff’s reputation. Thirdly, the potential for a defamatory accusation to re-emerge in the future — a potential that can be realised by the operation of the grapevine effect — justifies an award of damages to vindicate the plaintiff’s reputation. Going forward, the grapevine effect should continue to impact damages awards in these ways in these sorts of cases — at least for the time being. At the moment, the Australian jurisprudence of defamation by social media is in its infancy. We are still coming to terms with the internet. The prospect of unfavourable content being lost to the grapevine of social media frightens people.103 A recent case heard in the Supreme Court of Western Australia lends credibility to this fear. Wilson v Ferguson104 was a dispute between exes where the defendant posted explicit photos and videos of the plaintiff on Facebook. The plaintiff was successful in her claim for breach of confidence.105 The case demonstrates how our old doctrines can adapt to meet the challenge of the ‘pervasiveness’ of the internet and social media.106 In the defamation space, the redeployment of the ‘grapevine effect’ is how the law is adapting. 98
[2014] VSC 279 (20 June 2014) [703]–[704], [723], [730], [743]–[744], [788] (Kyrou J). [2014] WADC 175 (22 December 2014) [281]–[290]. 100 Civil Wrongs Act 2002 (ACT) s 139H; Defamation Act 2006 (NT) s 34; Defamation Act 2005 (NSW) s 37; Defamation Act 2005 (Qld) s 37; Defamation Act 2005 (SA) s 35; Defamation Act 2005 (Tas) s 37; Defamation Act 2005 (Vic) s 37; Defamation Act 2005 (WA) s 37. 101 Civil Wrongs Act 2002 (ACT) s 139F(2); Defamation Act 2006 (NT) s 32(2); Defamation Act 2005 (NSW) s 35(2); Defamation Act 2005 (Qld) s 35(2); Defamation Act 2005 (SA) s 33(2); Defamation Act 2005 (Tas) s 35(2); Defamation Act 2005 (Vic) s 35(2); Defamation Act 2005 (WA) s 35(2). See David Rolph, Matt Vitins and Judith Bannister, Media Law — Cases, Materials and Commentary (Oxford, 2010) 339–40 [8.1.8]. 102 See Gray v Motor Accident Commission (1998) 196 CLR 1, 35 (Kirby J). 103 See, eg, Eric Posner, ‘We All Have the Right to Be Forgotten’, Slate (online), 14 May 2014 . 104 [2015] WASC 15 (16 January 2015). 105 See further Iain Freeman, Compensation Awarded in WA Revenge Case (19 March 2015) Lavan Legal . 106 Wilson v Ferguson [2015] WASC 15 (16 January 2015) [79] (Mitchell J). 99
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In the future, the thought of a defamatory publication being shared on an internetgrapevine could be less distressing. Or rather, the mode of publication could be less distressing, because it will be more familiar. As the world becomes more interconnected, sharing will become easier and more frequent. Once private moments will be easily captured via technology like Google Glass. Traditional conceptions of privacy will be challenged, and it will be harder for moments to be forgotten. The public will adjust to a new status quo: we will come to expect digital permanency. Everything will be available for recall, including defamatory accusations. This does not mean that the grapevine effect, or defamation law, will lose its relevance. To the contrary: once seemingly benign comments could have a devastating effect in a more interconnected environment. There will be a temptation for damages awards to increase accordingly.107 Fortunately, the Uniform Defamation Acts will prevent damages awards from going too high. This is critically important. At some point, the prospect of a massive damages award will have an unjustifiable chilling effect on freedom of expression on the internet.108 This will discourage the expression of both defamatory falsehoods and legitimate criticisms.109 We must strive to deter the former and defend the latter. We should remember that the internet may be a haven for trolls, but it may also drive human progress.
107
Although no two cases will be exactly alike, a judge of a case of defamation by social media ought to be mindful of damages awards in comparable cases: Chulcough v Holley (1968) 41 ALJR 335, 338 (Windeyer J), quoted in Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327, 350 [69] (Hayne J). 108 Ursula Cheer, ‘Myths and Realities About the Chilling Effect: The New Zealand Media’s Experience of Defamation Law’ (2005) 13 Torts Law Journal 259. 109 Lidsky, above n 84, 888.
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