Case Law, Australia: Mickle v Farley, $105,000 awarded for defamatory tweets and Facebook posts – Patrick George

7 03 2014

gazetteA former NSW schoolboy who posted abusive and defamatory statements on Twitter and Facebook about a teacher at his school ordered to pay $105,000 damages … NSW District Court Judge Michael Elkaim found “the effect of the publication on the plaintiff was devastating” … Patrick George reports.

In one of the first judgments of its kind in Australia involving social media, a defendant who posted defamatory statements on Twitter and Facebook has been ordered to pay $105,000 in damages, plus costs.

Background

The plaintiff, Christine Mickle, was a teacher in the music and arts department at Orange High School in regional NSW.

The defendant, Andrew Farley, was the son of the head teacher of the same department at the school. He was also a former student of the school but had not been taught by the plaintiff.

Andrew Farley’s father had taken leave from his position as head teacher on more than 20 occasions for ill health from 2006 to 2012.

While the Department of Education continued to retain the position for him, each attempt to return to work was unsuccessful.

The plaintiff was appointed as acting head teacher during part of that time as were others.

imageIn a career spanning over 30 years, she established an excellent reputation for her skills as a teacher and musician.

In 2012, in recognition of her outstanding contribution and devotion to the school and her students, the school honoured her by naming one of the school’s buildings after her.

Farley, on becoming aware of the school’s decision, published a number of defamatory and abusive posts on Facebook and Twitter about her.

Others contributed to the conversation. However, one of the friends warned:

“You’re all entitled to your opinions. I in no way am arguing with that. But be very very VERY careful what you post on public media.”

The defendant responded:

“Like I said I can post whatever the fuck I like and if you don’t like it block me so you don’t have to read it. I don’t give a shit … if any one gets hurt over what I have to say about her.”

The defendant had 63 followers on Twitter. These included media outlets, local businesses and school students.

The tweets and posts were brought to the plaintiff’s attention by the principal of the school after it became clear to her that the matter had spread to students, parents and others outside the school community.

Farley continued to post defamatory and abusive tweets and messages about the plaintiff.

Mickle sought an apology and removal of the material from Farley’s social media accounts and sought that he retain the records for the purposes of any proceedings that might be brought.

Farley purported to apologise and closed his Twitter account @DrewHFarley but set up a new Twitter account under a fictitious name @DrewFH posing as Drew Hampton.

Concerned about the damage that already had been done and that Farley would continue to publish defamatory and malicious material about her on his social media pages, the plaintiff commenced proceedings in the NSW District Court.

Farley filed defences but they were struck out as embarrassing and an abuse of process.

Damages

The hearing on damages took place on November 29, 2013.

In his decision, Judge Michael Elkaim awarded the plaintiff compensatory damages in the sum of $85,000.

The court heard that the plaintiff was particularly affected by the fact that the abuse had spread amongst the local community at a time when she was being honoured publicly and the fact that the defendant was the son of the head teacher who she and others had stood in for over a long period of time to cover his absences.

In awarding compensatory damages, his Honour accepted that all of the defamatory imputations were untrue and found that the “effect of the publication on the plaintiff was devastating”.

It was submitted that the extent of the audience to whom the matter had been published was by reason of the nature of social media undefined and inexact but due to the grapevine effect, was likely to be substantial within the local community and beyond and by reason of the internet, potentially permanent, damaging the plaintiff’s reputation into the future.

imageHis Honour stressed:

“That when defamatory publications are made on social media it is common knowledge that they spread.

They are spread easily by the simple manipulation of mobile phones and computers. Their evil lies in the grapevine effect that stems from the use of this type of communication.”

Judge Elkaim held that in addition to compensation for the distress and hurt to feelings the plaintiff suffered and the damage to reputation, the award, most importantly, must signal to the public that the vindication of the plaintiff’s reputation had been attempted so that the public will know that the lies published by Farley have no truth whatsoever.

He awarded the plaintiff $85,000.

Judge Elkaim also found that the defendant’s conduct in response to the claim warranted an award of aggravated damages in the sum of $20,000.

Such conduct must be improper, unjustifiable or lacking in bona fides.

Although the defendant removed the material from his social media pages and provided an apology to the plaintiff, his Honour observed that “the apparent sincerity” of the apology was contradicted by the later filing of a defence which sought to prove the imputations were true.

That defence then fell away and an amended defence pleading qualified privilege was filed. The defence of qualified privilege also had no substance and was then struck out.

Farley made no appearance at the assessment of damages hearing. He did, however, complain about the “invasion of privacy” in being subpoenaed to produce his social media records to the court which showed he had continued to defame the plaintiff.

Judgment in full

N.B: This case was preceded in the Adelaide Magistrates Court in 2012 where a former principal of an outback school was awarded $40,000 over a defamatory Facebook page created by two parents of students at the school (Burtenshaw v Knueppel).

Appearances

For the plaintiff: Sandy Dawson instructed by Patrick George of Kennedys.

For the defendant: Unrepresented.

This article was originally published in the Gazette of Law and Journalism, Australia’s leading online media law publication.

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