In a significant development in defamation law, the District Court of South Australia has held that a person can be held liable for the defamatory comments made by other social media users following that person's original social media post.
In the case of Johnston v Aldridge [2018] SADC 68, the Court awarded the Plaintiff damages assessed at $100,000 (inclusive of aggravated damages), after the Plaintiff successfully argued that not only was the Defendant's initial Facebook post concerning the Plaintiff defamatory, but so too were certain of the approximately 4,500 comments that followed the Defendant's post. Critically, the Court held although these comments were not authored by the Defendant they were attributable to the Defendant as a 'secondary' publisher of the material.
By publishing the initial post on Facebook, the Court found the Defendant has "participated" in the publication of the further comments, as he had generated an opportunity for such comments to be made. In doing so, the Defendant had assumed responsibility to both monitor the content of the comments and to "remove those which were inappropriate or suffer the consequences irrespective of the inconvenience involved".
The Defendant contended that he was unable to control the users making the comments on his Facebook post, and furthermore that the large volume of comments and the speed in which they were being made rendered it 'impracticable' for the Defendant to remove or monitor them.
The Court considered this was not enough to "make it unrealistic or unreasonable" for the Defendant to oversee the comments. This was particularly the case given the Defendant's initial post carried the potential to attract "inappropriate comments" about the Plaintiff. The Court noted the comments following the Defendant's post were not much more than "vulgar abuse" and when read in the context of the Defendant's post "emphasised and adopted the defamatory imputations carried by the post itself".
This case significantly broadens the scope of what is considered 'publication' of defamatory material - extending the reach of liability to comments made by other users via secondary publication, and not merely social media posts attributable to the primary author.
It also means that social media users must exercise at least "reasonable diligence" when monitoring comments on their posts, or otherwise risk potential liability in defamation.
The initial post in this case appears to have been of a nature that might be expected to prompt contentious posts in response. Accordingly, it would be prudent to keep an eye on the reaction of others to any post you make, especially if you start out with something that may be defamatory itself.
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