When can a Facebook comment be defamatory?

A Paralympian’s defamation case against his ex-partner, who referred to him as a ‘cheat’ in a Facebook comment, was unsuccessful after he failed to establish that he suffered serious harm as a result of the comment.

The decision of the District Court of New South Wales (the Court) in Jones v Jackson (No 2) [2023] NSWDC 410 provides useful guidance on when a publication has caused or is likely to cause ‘serious harm.’

Facts

The Plaintiff, Mr Stuart Jones, is a Paralympian who began riding in paracycling competitions after sustaining injuries in a car accident.

Mr Jones was awarded a Spirit of Sport Award in November 2021. When the New South Wales Institute of Sport made a Facebook post congratulating Mr Jones on his award, Mr Jones’ ex-partner and mother of his estranged child, Ms Letitia Jones, commented ‘Hahaha. Shame he doesn’t have the same kind of ‘spirit’ when it comes to his personal life or telling the truth about his disability. Even as a cheat you failed’ (the Publication).

There were three responses to the comment: two of which were supportive of Mr Jones, and a critical comment posted by a person with whom Mr Jones held a mutual strong dislike.

Several days later, Mr Jones received a message from his estranged son which read, ‘Congrats dad!!! I’m so proud of you! You deserve it.’ Mr Jones and his son exchanged further messages in which the son expressed embarrassment regarding his mother’s behaviour.

Unbeknownst to Mr Jones, some time before he received the Spirit of Sport Award, the ABC current affairs program Four Corners began investigating Mr Jones in relation to Paralympic cheating. In May 2022, Mr Jones was contacted by an ABC journalist about the upcoming episode.

Mr Jones then sought to have the Publication taken down and, some months later, commenced a defamation proceeding against Ms Jones in relation to the Publication (and another Facebook comment to a similar effect).

Decision

By the time the Court handed down this decision, the main matter in dispute between the parties was whether Mr Jones suffered or was likely to suffer ‘serious harm’ as a result of the Publication, as required under section 10A of the Defamation Act 2005 (NSW).

The Court noted that serious harm ‘will always be highly fact specific’ and requires ‘evidence of harm to reputation of a serious nature.’ The requirement is to show ‘serious harm caused to the reputation of the claimant in the eyes of the publishees, and not damage to the claimant’s reputation of people generally.’

The Court considered a number of factors which, when considered together, indicated that Mr Jones had not suffered serious harm. Those factors were:

• The grapevine effect, or the likelihood of repetition of the allegation beyond the original publishees. Mr Jones had not called any evidence on this issue but it did not appear that the content had been repeated beyond the three people who responded to the Publication;
• The delay factor: Mr Jones only sought to have the Publication taken down in June 2022 and only commenced proceedings in December 2022, more than a year after the Publication was published. During that period, Mr Jones’ Paralympian and cycling activities continued without incident. However, Mr Jones explained that he was reluctant to issue a solicitor’s letter to Ms Jackson in circumstances where his son had contacted him for the first time in over a decade. Accordingly, no inference was drawn from the delay;
• Causation issues: Mr Jones alleged that the Publication had some connection to the Four Corners episode. However, the Court was satisfied that there was no evidence that the Publication caused or contributed to the Four Corners investigation, because the source of the information was clearly identified as another of Mr Jones’ former partners and the investigation commenced before the Publication was made;
• Duration of the harm: Any harm appeared to be of a limited duration as Mr Jones was awarded another award for Paralympic Spirit in January 2022; and
• The lack of reputational damage established from the Publication. While Mr Jones said he was ‘gutted’ by the Publication, this did not equate to reputational damage.

Accordingly, Mr Jones was unable to establish serious harm and the proceedings were dismissed.

Take home messages

The ‘serious harm’ test applies in defamation proceedings in South Australia and indeed in all states and territories in Australia other than Western Australia and the Northern Territory.

This case is a reminder that, even though a Facebook comment can hypothetically be distributed widely, a successful defamation action requires the complainant to prove that the comment did in fact cause serious harm to the claimant’s reputation in the eyes of people generally, not just those who saw the comment. Simply being hurt by the comment will not be sufficient for this purpose.

For more specific information or advice on any of the material contained in this article, please contact Lincoln Smith on +61 8 8210 1203 or lsmith@normans.com.au, Anastasia Gravas on +61 8 8217 1331 or agravas@normans.com.au or Annabelle Narayan on +61 8 8210 1292 or anarayan@normans.com.au.