In Australia a woman has been ordered to pay her estranged husband A$12,500 after she accused him, on Facebook, of subjecting her to years of abuse. Although she defended the defamation claim by arguing truth, the Court found that at best, she had only established that there was an incident during a holiday in 2010 which led to her husband to apologise to her. As such, the Court found that the woman had indeed defamed her estranged husband – an experienced educator – and that he was entitled to public vindication of the allegations. The woman deleted her post after six weeks and that was a factor for the Court in determining the quantum of damages payable. Interest and costs were also payable on top of the award.
There is no reason why the same facts could not succeed in a claim for defamation in New Zealand. The Courts are more and more willing to intervene when it comes to defamation via social media. It will be interesting to see how the Courts deal with the enormous propensity for the repeated publication of defamatory statements on line when it comes to assessing damages. In the Australian case, the fact that the comments were read by a limited audience (presumably the Facebook friends of the woman) was also a factor the Court took into consideration when dealing with the issue of the appropriate quantum of damages. One could imagine that if it was a Twitter feed that spread, the damages would be greater (the Chris Cairns case springs to mind).
The Harmful Digital Communications Bill, if passed, will provide another avenue for victims of such postings. The government Bill is intended to address the harm that can be created by misuse of the internet and creates both civil and criminal offences along with an agency to monitor and investigate complaints. If not resolved then, the victim can make an application to the District Court which will have the power to order take downs, retractions, apologies and corrections. Orders can also be sought against website hosts and internet service providers. The Bill is expected to be back before Parliament for its second reading this year.
By Chris Patterson