14 December 2020

Thoughtless comments and far-reaching consequences: the ‘sad reality’ of social media defamation

This article was written by John Swinson & Priscilla Lal with assistance from Piper Guthrie (UQ Student and Summer Clerk).

Is it a good idea to sue for defamation if there is a post on social media that you do not like?  A recent legal action is a warning to using the courts to resolve such disputes.

Courts are showing a growing recognition that the social media posts should be read in context, taking into account surrounding posts and a recognition that readers are less likely to believe social media posts to be accurate. This brings about unique issues for those seeking to vindicate their reputations on social media and complicates the already difficult process of assessing and successfully arguing a claim in defamation. 

In Brose v Baluskas (No 6) [2020] QDC 015 (‘Brose Case’) the Queensland District Court rejected a High School principal’s claims in defamation against two Facebook commenters and awarded modest damages well below the amount sought against two other individuals who had used the forum of an online petition to post defamatory comments.

In this article, we consider the Brose Case and the lessons it teaches about the challenges and risks associated with social media defamation claims.

Background

Ms Tracey Brose is the longstanding principal of Tamborine Mountain High School. On 15 February 2016, she was suspended from the role pending the outcome of an investigation into alleged inappropriate conduct. Her suspension soon became public knowledge, causing rumours to spread.

In response to the suspension, Mr David Hows, the president of the school’s Parents and Citizens association, created an online petition on Change.org calling for Ms Brose’s reinstatement as principal and a private Facebook page called ‘Support Tracey Brose’. Though the response was overwhelmingly positive across both forums, 34 individuals made comments which were, to varying degrees, critical of Ms Brose. After being reinstated as principal on 25 May 2016, Ms Brose commenced legal proceedings against eight of these 34 individuals, claiming harm to her reputation as a principal and seeking $220,000 in damages from each. With four of the claims settling, the court had to decide whether four remaining posts were defamatory.

Unique context

The court reemphasised that whether a post is defamatory will always be informed by the context in which it was viewed. For example, people might interpret information differently if it was posted on Facebook compared to if it was published in a reputable newspaper. On this point, the Judge identified six features that distinguish publications on social media from other mediums. These were:

  1. Unregulated: Moderation can have a meaningful impact on the extent of its publication. However, media spaces are relatively unregulated and reliant on often ineffective volunteer moderation. In this case, Mr Hows did not take any steps to remove comments from either forum and only shut down the pages once the signature goal for the petition had been reached. More active moderation might have prevented the claims.
  2. Unreliable: The Judge concluded that there is a general acceptance in the community that online spaces are ‘not the most reliable source of commentary and comments on such forums ought to be taken with a grain of salt – or ignored entirely.’ For instance, many of Ms Brose’s friends told her ‘ignore the keyboard warriors’ and several witnesses said they ‘skimmed’ or became disengaged with the online conversation and made conscious choices not to engage with the negative discussion on the forums.
  3. Critical audiences: Analogously to the placement of a letter in an editorial section of a newspaper, the ubiquitous appreciation of the unreliability of information posted online often leads the ordinary reader to ‘employ a more critical eye when interpreting social media posts.’ Publications which readers do not place much stock in will necessarily have a weaker potential defamatory effect.
  4. Varying scope: Social media posts can vary wildly in their scope of publication and the extent of publication can inform whether a reader is more likely to draw general conclusions from specific statements or interpret statements as having narrow, personal meaning. Ms Brose’s suspension was generally only relevant to the school and local community and this limited the scope of its viewership and therefore the potential harm.
  5. Multi-dimensional conversation: Posts made on social media forums are rarely read in isolation. What might seem to be clearly defamatory can lose its sting based on the comments and posts surrounding it, even those made later in time.
  6. Emojis matter: The unique textual features of social media posts (e.g. emojis, pictures and non-standard characters) can have a material impact on their meaning, as can the grammar, syntax and spelling of a post. For example, the lack of coherence in one of the posts significantly weighed against how seriously it would have been taken.

The decision

The court found in favour of Ms Brose on two of the four posts. However, both were on the lower end of seriousness due to their context. Relevantly, the other comments on the Facebook page and petition had been overwhelmingly supportive of Ms Brose. This, in conjunction with the more critical approach that people are expected to take to social media comments, either mitigated or entirely removed the sting of the few negative posts. Notably, the Judge repeatedly stressed that Ms Brose had failed to address these crucial factors in her submissions.

For instance, a post alleging that Ms Brose was ‘pathetic NOT an educator’ and ‘a lying, manipulative bully’ was held not to be defamatory. The court found that although this comment was clearly unpleasant and abusive, the emotive language and insulting content would, if anything, garner sympathy for Ms Brose and make readers dismiss the claims as exaggeration. In contrast, the defamatory aspects of the two posts that Ms Brose succeeded on were the specific and more believable claims that Ms Brose mistreated or did not care about lower performing students. This was a a recurring allegation (in various forms) among the negative comments which lent credence to it such that it could not be entirely negated by the positive comments.

After factoring in the amounts received in the four prior settlements, Ms Brose was awarded only $6000 in damages. Ms Brose sought leave to appeal against one of the defendants.[1] The Court of Appeal refused her application, finding that there was no indication the trial judge had erred in making her decision and upholding the order for Ms Brose to pay that defendant’s costs.

A sad reality

This case stands as a practical example of the risks and potentially far-reaching consequences of thoughtless internet comments, and of why not every perceived wrong on the internet should be litigated.

The leadup to the trial involved a myriad of contested applications and cross applications and the trial itself was lengthy and complicated, running for an unusually long period of four weeks and spawning a 135-page judgment. Beyond being an enormous expenditure of court resources, this case caused a significant emotional and financial toll on both Ms Brose and the defendants.

It is, as noted by the Judge, a ‘sad reality’ that these kinds of disputes do sometimes have to be settled in the courtroom. The repercussions of the Brose Case are a warning for potential litigants to seriously evaluate the strength of their claim and consider whether more efficient solutions exist for protecting their reputation online before embarking on the costly process of litigation.

 

[1] Brose v Arnold [2020] QCA 162.

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