8 July 2021
Last year I wrote on Burrows v Houda [2020] NSWDC 485, a case in which the District Court of New South Wales confirmed that an emoji is capable of giving rise to defamatory meanings.
The case turned on a thread of tweets on Twitter. Reading multiple tweets in context, a tweet of a zipper-mouth face emoji was held to be capable of conveying defamatory meaning.
The case was illustrative of two truths of modern defamation litigation.
First, Australian courts take a liberal approach to questions of defamatory capacity. As the High Court confirmed in Trkulja v Google LLC (2018) 263 CLR 149, [30]:
“The question of whether words or images complained of are capable of conveying a pleaded defamatory imputation is a question of law which permits of only one correct answer. It is, however, a question about which reasonable minds may sometimes differ, and, consequently, it is only ever with great caution that a defamation pleading should be disallowed as incapable of bearing a defamatory imputation.”
Second, the internet is now the natural medium of defamation. In particular, social media is ripe for giving rise to defamation disputes as a natural result of some individuals’ tendency to speak more harshly to one another via digital platforms.
Each point is further illustrated by the District Court of Queensland’s decision in BeautyFULL CMC Pty Ltd [2021] QDC 111 last month.
Defamation by the ‘gram
This is the second case (that I know of) involving defamation by an Instagram story. The other was Small v Small [2018] ACTSC 231, which involved an application to transfer proceedings. In that matter, the Court considered the ‘complexity’ of the claim in a manner which implicitly confirmed that defamation by the ‘gram was legally possible.
The dispute in BeautyFULL concerns individuals involved with a cosmetic medical clinic, BeautyFULL. The first plaintiff was the company underlying the small business; the second, third and fourth plaintiffs were family members working at the business.
The defendant, Ms Hayes, was formerly a receptionist at BeautyFULL, and at the time of judgment was in a relationship with a man who was once married to one of the plaintiffs.
As Reid DCJ commented, “[i]t can be seen that the parties’ personal circumstances were such that there was significant potential for disagreement”.
Hayes “extracted” images from BeautyFULL’s Instagram page, editing the images and adding critical commentary via Instagram’s stories functionality.
For example, the first publication was a picture of one of the plaintiffs, who stopped working at BeautyFULL in order to work as a GP in another clinic, referring patients for COVID tests. BeautyFULL’s Instagram apparently recounted that fact. Hayes took issue, as recounted in the judgment (at [13]–[17):
the defendant caused to be posted on her Instagram account the same photo of the fourth defendant, taken by her from the first plaintiff’s Instagram post. In the defendant’s post, the face of the fourth defendant has been blacked out, although her hair is still visible and the word “Margaret”, although ruled through, was very clearly still able to be read. The ruling through of her name did nothing to disguise the fact that the photo was of “Dr Margaret”.
[14] The defendant’s post of the fourth defendant was part of a “story” by the defendant on Instagram. The defendant in that story next published the following comment:
“Before you watch my story I am not naming and shaming but when I see a company upload a FAKE photo that a medical practitioner is going to work on the frontline during the Covid-19 crisis, it’s disgusting and disrespectful to the people who are actually putting their lives at risk to save others.”
[15] The defendant’s story then included three photographs of the third plaintiff, extracted from the first plaintiff’s Instagram page, together with partial signage of the first plaintiff’s BeautyFULL logo. The defendant then posted the following words:
“The same uniform was given to one of the staffs’ mother to wear and fake it that she’s working on the frontline.
How do I know this?”
[16] There is then this further post:
“Because I used to work there and I ordered the uniforms off www.springspawear.com”.
[17] The defendant then posted:
“I would love to thank the REAL hero’s that are working day and night to save lives.”
Followed by the words:
“CORONAVIRUS (COVID-19) it’s such a serious situation that I don’t understand why a company would lie about it.”
There was no defence of justification; to the contrary, the imputations in each of the publications by Instagram were intentionally false (see [96]).
For that story, and others of similar defamatory character, Ms Hayes was liable in defamation. In the result, she was ordered to pay a total of more than $85,000 damages to the plaintiffs, and was restrained as follows with an injunction:
The defendant, whether by herself, her servants or agents is prohibited from causing to be published whether orally or in writing or by email or electronic means, or by way of publication on any social media platform such as but not limited to Facebook, Instagram, Twitter, TikTok, Reddit, any publication which has the effect of defaming the first, second, third or fourth plaintiffs.
This might be the first trial judgment in a case of defamation by ‘gram story, but it surely won’t be the last. To avoid landing yourself in court, be respectful and treat Instagram, like any other public forum, as a place in which your actions can have real consequences.
Disclaimer: The information published in this article is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.
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