In a High Court case decided in April this year (Karam v Parker and Anor [2014] NZHC 737), Victor Purkiss and Kent Parker were ordered to pay David Bain campaigner Joe Karam more than $500,000 for making persistent defamatory attacks against him via Facebook and another website.
This case clearly goes to show that social media sites such as Facebook, Twitter and MySpace are subject to the same scrutiny as other websites and written publications; anything posted there by an individual can be at risk of a defamation law suit if it is not strictly correct, or not your honest opinion.
Key elements
The law of defamation protects a person’s right to his/her reputation.
New Zealand is governed by Defamation Act 1992, which sets out the elements of defamation as follows: (a) A statement must have been made (b) The statement must have been defamatory (c) The statement must have been communicated to one or more people; that is, there must have been publication (d) The statement/publication must also be proven to be false.
The Courts have given a number of definitions to what defamatory means, and can often encompass allegations of (a) antisocial behavior (b) fraudulent activities (c) dishonesty (d) professional incompetence
Social Media sites
Therefore, in applying the core essential ingredients of defamation to social media platforms such as Facebook, Twitter and MySpace, it is abundantly clear that should you place a negatively worded comment regarding someone, then that would constitute a ‘statement.’
Generally if the statement is negative in nature or has clear negative connotations, then it would be defamatory.
Should that statement be placed in a public realm, it will constitute a ‘publication’ to a third party, which is the third element of a defamation claim. Therefore, if that comment is found to be false, the last element of a Defamation Claim is met.
Should the elements be met, the person at the receiving end of such comment or comments can, strictly speaking, initiate legal proceedings for damages.
Therefore, an adverse Facebook comment made in the heat of the moment could potentially find its way into the Court system and end up costing you a fair amount of money, usually in the thousands depending on (a) the nature of the comment – the harsher the allegations, the higher the compensation awarded (b) how many people the comment was disclosed to; and (c) the damage to the person’s reputation.
High damages
Recent cases have highlighted that high damages can be awarded in Defamation claims. With the advent of Social Media websites and applications, the potential for disclosure has substantially increased.
Facebook comments can be shared to entire groups of friends, leading to almost exponential disclosure with each time the message or comment is shared.
A similar phenomenon can be experienced in Twitter, when posts are ‘Re-tweeted.’
A Re-tweet is someone else’s Tweet that you chose to share with all of your followers on Twitter.
Therefore, it may pay to consider the legal ramifications of Tweeting or Facebooking about someone you are not particularly fond of; it could end up in being a costly and drawn out process.
Francis Peters is a Barrister and Solicitor in the Litigation Team of Corban Revell Lawyers. He frequently appears in the District Courts of Waitakere, North Shore, Manukau and Auckland District Courts. He has also appeared in the High Court for civil matters. Corban Revell Lawyers is the Sponsor (jointly with Nair & Chen Associates Chartered Accountants) of the ‘Business Excellence in Innovation’ category of the Indian Newslink Indian Business Awards 2014.
Corban Revell Lawyers provides comprehensive legal services including Commercial, Estate Planning, Family & Relationship Property (including Separation and Divorce), Immigration, Litigation, Maori Issues and Property & Conveyancing. The law firm also handles all issues relating to Franchising. For further information, please contact (09) 8370550; Email: info@corbanrevell.co.nz
Social Media poses risks
Social Media sites such as Facebook, Twitter, and MySpace are excellent platforms for sharing information, greetings and general knowledge. However, these have of late become tools in the hands of a few who attack certain people and communities. Freedom of Speech is guaranteed in most democratic countries, however, there are limits to this and misuse of freedom may lead to legal repercussions. Use of hate language, condemning and threatening communities and/or individuals may be construed as acts that breach the limits of freedom of speech. Readers may contact Francis Peters, a member of the Litigation Team at Corban Revell Lawyers on (09) 8370550; Email: fpeters@corbanrevell.co.nz
