18 December, 2018
Bolton v Stoltenberg [2018] NSWSC 1518
What you need to know
On 15 October 2018, the Supreme Court of NSW held that a series of Facebook posts about the former Mayor of the Narrabri Shire Council were defamatory, and awarded the plaintiff $110,000 in damages.
The Court considered whether "liking" a Facebook post could amount to an act of endorsement that could attract liability for defamation.
Justice Payne found that the act of "liking" a post was not enough to attract liability, however his Honour noted that such conduct could attract liability if evidence was led to show the "like" had drawn the attention of others to the post.
Narri Leaks and the Defamatory Posts
Background
Mr Conrad Bolton, the former Mayor of the Narrabri Shire Council, brought defamation proceedings in the Supreme Court of New South Wales in relation to a series of defamatory posts on a Facebook page created as a forum to air grievances about the Council. The Facebook page was entitled "Narri Leaks", an homage to the well-known whistle blowing website "WikiLeaks".
The author of the defamatory posts, and administrator of the webpage, Mr Stephen Stoltenberg, is a former town clerk who had previously maintained a professional relationship with Mr Bolton. The relationship soured after Mr Stoltenberg took issue with Mr Bolton's appointment of a female General Manager of the Council. Mr Stoltenberg used "Narri Leaks" to disseminate defamatory views about Mr Bolton online.
Mr Bolton alleged that between 2015 and 2016 Mr Stoltenberg published six defamatory posts on the "Narri Leaks" webpage that conveyed various imputations about him, including that he:
- was corrupt and dishonest in executing his duties as Mayor of the Council;
- acted improperly and corrupted the selection process for appointing the General Manager of the Council; and
- deliberately breached the Local Government Act.
Ms Ann Loder, who was a sitting Narrabri Councillor at the time, engaged with the posts on "Narri Leaks". Between June and July 2015, Ms Loder "liked" 64 posts on the webpage and on at least one occasion uploaded a comment on a defamatory post that encouraged others to "like" the post so as to bring attention to it.
Findings and Damages
On 15 October 2018, Justice Payne found that both Mr Stoltenberg and Ms Loder were liable in defamation for their conduct on the "Narri Leaks" webpage. Justice Payne held that Mr Bolton suffered damage to his reputation by reason of the defamatory posts and awarded general and aggravated damages.
Mr Stoltenberg was ordered to pay Mr Bolton $80,000 in general damages and $20,000 in aggravated damages. The aggravated damages were awarded with respect to a number of posts uploaded by Mr Stoltenberg during the proceedings, that compared the behaviours of Mr Bolton to Don Burke, Harvey Weinstein and Craig McLachlan. Payne J labelled those posts as improper and unjustifiable.
His Honour also ordered Ms Loder to pay Mr Bolton $10,000 in respect of her comment encouraging others to like Mr Stoltenberg's post. However, she was not liable with respect to her conduct in otherwise "liking" posts uploaded by Mr Stoltenberg.
In addition to damages, Payne J found there to be a "significant risk" that Mr Stoltenberg would repeat the defamatory claims against Mr Bolton and granted permanent injunctive relief.
The Element of Publication
In considering the liability of Mr Stoltenberg and Ms Loder, his Honour addressed the question of whether each were publishers of the defamatory material the subject of the proceeding.
Liability of Mr Stoltenberg
Mr Stoltenberg argued that, although he was the author of the defamatory posts, the fact that the posts had been uploaded to the "Narri Leaks" webpage did not, in and of itself, lead to an inference that the posts were downloaded and perceived by people other than Mr Bolton. It was Mr Stoltenberg's submission that unless it could be proved that a third person had read the posts he could not be liable as a publisher of them.
His Honour rejected the suggestion that publication had not been proved in this case and found that there was an abundance of facts from which an inference that the matters complained of were downloaded and read by people other than Mr Bolton could be drawn. Those facts included admissions that Mr Stoltenberg had made about the number of "hits" on the page and Facebook business records about the "reach" of the posts.
Having abandoned all other defences, Mr Stoltenberg was also unsuccessful in defending the publication of the posts on the basis of common law and statutory qualified privilege. His Honour characterised submissions about these defences as "labyrinthine".
Liability of Ms Loder
The question of Ms Loder's liability was more complex and required the Court to analyse the two categories of conduct pleaded by Mr Bolton, being (a) Ms Loder's actions in liking a number of Ms Stoltenberg's posts; and (b) Ms Loder's comment in which she encouraged others to "like" a Stoltenberg post.
Was Ms Loder liable for "liking" defamatory posts?
In determining Ms Loder's liability for liking a number of defamatory posts, Justice Payne reviewed the authorities pertaining to secondary participation in the publication of defamatory material (including in the online defamation context).
Citing Google Inc v Duffy [2017] SASCFC 130 and Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350, Payne J held that if by words or conduct a person draws attention of another to defamatory words then there has been primary, or at least secondary, participation in the publication such that the person drawing attention to those words may be liable in defamation. Furthermore, his Honour held that a secondary participant may have responsibility for the continued publication of defamatory material where they have consented to, approved of, adopted, promoted or ratified the defamatory material.
In deciding that Ms Loder's conduct of "liking" the post was not an act sufficient to attract liability as a secondary publisher of the defamatory material, his Honour noted the following at [171]:
"I do not regard “liking” a Facebook post, of itself, as analogous to conduct of the kind described by Kourakis CJ [in Google Inc v Duffy] of 'drawing the attention of another to defamatory words…[resulting in] primary, or at least secondary, participation in the publication'. “Liking” a post is not, at least on the limited evidence before me, the same as hyperlinking a defamatory article in the way the operator of the website was found to have done in Visscher".
However, his Honour also noted that "liking" a post could amount to publication in the relevant sense if there was sufficient evidence demonstrating that a "like" draws another's attention to a post (for example by pushing it to a news feed). At [176]:
"It may be that there is a way that Mr Bolton could have demonstrated that “liking” a post could amount to publication in the way described by Kourakis CJ in Google Inc v Duffy. If by “liking” a post that matter was forwarded to the Facebook feed of another person it may be that it could be concluded that by words or conduct the “like” has drawn the attention of another to defamatory words, meaning there has been primary, or at least secondary, participation in the publication. There was, however, no sufficiently compelling evidence before me that Ms Loder “liking” a Narri Leaks posts had that effect."
Although his Honour found that Ms Loder was not liable for her "likes" of Mr Stoltenberg's posts, Payne J did find that a Facebook comment made by Ms Loder encouraging others to like the post constituted a "specific endorsement" of the matter complained of and fell "squarely within the class of conduct Kourakis CJ described in Google Inc v Duffy as secondary participation in publication". Payne J held that Ms Loder was liable because, by her words and conduct, she had drawn the attention of another to defamatory words by urging others to express their agreement with a post that conveyed a defamatory imputation.
Where to from here?
Justice Payne's decision brings acute attention to the risk attendant in "liking" defamatory Facebook posts. According to his Honour's reasoning, liability may attach where it can be proved that the act of "liking" causes a post to appear in the newsfeed of friends and followers. Although, the cause and effect relationship between a "like" and the post's subsequent promotion is a matter for technical evidence, contextual matters may also bear on the question of liability, including whether or not the individual liking the post has a substantial following (for example, online "influencers").
The question, although novel in Australia, has been considered in other jurisdictions. In May 2017, the District Court of Zurich held that "liking" a Facebook comment could amount to conduct arising liability in defamation, including because the conduct promotes the post and re-distributes it to other Facebook users.
In Judge Catherine Gerwig's view, the mere act of "liking" the post showed the defendant's support for the content of the defamatory post (as opposed to ignoring it), such that the defendant could be liable for it. The post "liked" by the defendant in that case contained imputations of anti-Semitism and racism.
The act of commenting on or liking social media posts may be sufficient to attract liability for defamation. Social media users and organisations with social media accounts should be wary not to engage with posts that they know to be, or suspect to be, defamatory, and ensure that they act responsibly when commenting or liking posts, particularly if the account being used has large number of followers or subscribers.
For further information, please contact:
Paul Dimitriadis, Ashurst
paul.dimitriadis@ashurst.com
