The recent decision in Webster v Brewer (No 3) illustrates the Courts' increasing willingness to make significant damages awards for defamatory publications on social media. The $875,000 payout is a sobering reminder about the serious and expensive consequences that an ill-considered Tweet, post or status update can lead to. Organisations need to ensure their employees are properly trained and educated about appropriate social media activities.
The case also serves as a useful reminder of the "grapevine effect", which recognises that dissemination of defamatory material is rarely confined to those to whom the matter is immediately published. As such, where a matter complained of is viewed by only a relatively small number of people (for instance, in comparison to a mainstream media publication) its defamatory effect may "percolate through underground passages and contaminate hidden springs". Individuals and businesses alike should be cognisant of the potential flow-on effect of their publications, particularly when those publications appear on social media. This effect is intensified when the publications relate to members of a small community, or where the subjects of the publications rely on maintaining a trustworthy or otherwise positive reputation to carry out their work.
Webster v Brewer: the background
Over the course of two weeks, Ms Karen Brewer uploaded seven text and video posts onto her Facebook page. The subjects of these posts were:
- Dr Anne Webster, a social worker and first-term Nationals MP from Mildura;
- Dr Philip Webster, a GP and Dr Anne Webster's husband; and
- Zoe Support, a not-for-profit organisation founded by Dr Anne Webster that provides assistance to vulnerable pregnant women and new mothers.
In her posts, Ms Brewer branded the Websters and Zoe Support as participants in a secretive criminal network involved in the sexual abuse of children. The Websters had never heard of Ms Brewer.
Gleeson J called Ms Brewer's conduct "both disgraceful and inexplicable". Interlocutory and permanent injunctions were issued, requiring Ms Brewer to remove the posts and restraining her from making further publications about the applicants. Ms Brewer did not plead any defences and did not participate in the proceedings at any stage. On 18 June 2020, Gleeson J ordered default judgment for the applicants.
Damages awarded
Gleeson J assessed damages including aggravated damages as follows:
- for Dr Anne Webster, $350,000;
- for Dr Philip Webster, $225,000; and
- for Zoe Support, $300,000
In total, $875,000 was awarded to the applicants.
Gleeson J applied the statutory cap on damages severally for each applicant.
Seriousness of the imputations
At the time of the posts all three applicants had positive community reputations, and their work depended on their honesty and integrity. Conversely, Ms Brewer's posts alleged participation in deliberate and heinous criminality and moral depravity, "the most serious kind of defamatory imputations that could be levelled at an individual or a charity".
Therefore, a substantial award of damages was necessary to "nail the lie", that is, to demonstrate Ms Brewer's charges were baseless and to vindicate the good names on which the applicants rely for their work. At [89], Gleeson J said the need to vindicate the applicants' reputations was the most substantial consideration in her assessment.
Medium and extent of publication
The significant extent of publication was also considered. Outlining the number of reactions, comments, shares and views each post received before they were removed by Facebook, Gleeson J accepted that the defamatory imputations were widely published and likely spread into the local community of Mildura.
While the publications would have had greater impact if they were published in a major newspaper by a respected journalist, Gleeson J accepted that suggestible members of the Mildura community may have considered them credible.
Impact of publications on applicants
Gleeson J recognised the impacts of the publications on the mental health of Dr Anne Webster and Dr Philip Webster. The impact of Ms Brewer's posts on Zoe Support was also assessed, taking into account negative comments on its Facebook page and concerns about its chances of benefiting from future philanthropic funding opportunities.
Aggravated damages
Gleeson J awarded aggravated damages. Ms Brewer's Facebook posts were vicious and without basis. Their repetitive nature aggravated the harm suffered by the applicants by creating the impression that Ms Brewer was pursuing a vendetta against them. This was reinforced by Ms Brewer's defiance in the face of the Court proceedings.
Key takeaways
This case illustrates that significant defamation payouts are no longer reserved for large media organisations. Businesses and individuals can now be subject to media organisation-sized payouts. Social media gives anyone a platform for public comment, and subsequently, anyone is exposed to similar risk.
In this landscape it is critical for businesses to mitigate against the risks posed by social media. We have three recommendations that may save your business from some very expensive consequences:
- be cautious with your business' social media content – we urge the utmost care if you are considering a post about another organisation or a person with a public profile or community reputation that they may wish to protect. Before you click enter and your Tweet, post or status update is released to the world, step back and think: if you were the head of a news outlet, would you allow your post to appear in tomorrow's paper?
- remember your reach – any post by your is potentially to a very large audience. Remember, the grapevine effect means you are not only posting to the followers of your organisation, but potentially also their families, friends, followers and communities; and
- educate your employees – it is equally important that your employees understand the above points. The social media landscape continues to evolve, as do the associated risks. Accordingly, your business' social media policies should be regularly updated. To ensure that your employees are aware of these risks we recommend including social media training in your employee induction program, as well as ongoing training for all staff members. Your employees are the human "face" your business presents to the world, and this case shows that even one person's social media activity can have disastrous effects.
