The increasing prevalence of social media has led to a rise in defamation cases involving online publications.
This blog post discusses the legal approach to evaluating social media publications in defamation cases, specifically focusing on imputations and the extent of publication.
The analysis will draw from the case of Hockings v Lynch & Adams [2022] QDC 127, as well as referencing other pertinent cases such as O'Reilly v Edgar and Bolton v Stoltenberg.
Extent of publication
When determining the extent of publication in defamation cases involving social media, courts take into account various aspects.
These include the number of followers, shares, likes, and comments, which can serve as evidence of the publication's reach. For instance, in O'Reilly v Edgar, the court acknowledged that at least 1,000 members of a Facebook group had downloaded and read the defamatory posts.
In contrast, in Bolton v Stoltenberg, the court inferred from the evidence of reach, likes, comments, and shares that a substantial number of people had downloaded and read the material.
Context
The context in which defamatory posts are made is also a crucial factor to consider.
As articulated by Muir DCJ in Brose v Baluskas (No 6), examining the posts within the context they were posted and as part of the broader conversation on the relevant sites is essential.
Social media platforms possess particular characteristics, such as:
inconsistent moderation,
a propensity for false or exaggerated claims,
the use of emojis and non-standard characters.
These factors can impact how an ordinary and reasonable reader interprets and understands the posts.
Ongoing Publication
Additionally, the extent of ongoing publication plays a significant role in defamation cases.
In Hockings v Lynch & Adams, for example, the court examined whether the defamatory posts remained publicly accessible on the internet at the time of the trial. The court found that, due to the grapevine effect, the defamatory posts had been published to an estimated hundreds of people.