Yet another school defamation case is in the news. This should serve as a wake-up call for all staff, students, and parents to be careful about social media posts.
The Herald Sun recently reported that Yeshiva College (College) administrator, Ms. Nechama Bendet, is suing for defamation over a set of social media posts. This defamation case is an example of how far reaching the impact of child abuse allegations can be, leading to a whole range of legal consequences. It is not only the victims and perpetrators who can be affected. All members of the community can be implicated. The case also sends a message about the dangers of social media misuse.
For the purposes of our article, please note that while the Herald Sun states that Ms Bendet is pursuing a 'libel' claim, the correct term is 'defamation' as the terms 'libel' and 'slander' have now been eclipsed by the broader terminology as part of uniform legislation that was rolled out in 2006.
In the article, the Herald Sun reveals that Ms. Bendet, the College's former general manager, lodged a writ in the Victorian Supreme Court in early August, denouncing five Facebook posts made by Bruce James Cooke. She is seeking damages for loss of reputation.
Mr Cooke, who Bendet has referred to as a 'vocal member of the Jewish community', allegedly made comments about Ms. Bendet on Facebook. The comments, Ms. Bendet claims, suggested that she tried to ostracise two sexual abuse victims, calling them 'mosers'. A moser is a Hebrew term for a Jewish person who implicates another Jewish person to secular authorities.
Bendet's statement of claim alleges that Mr Cooke's posts were defamatory for various reasons, including because they implied:
In support of her defamation claim, Ms. Bendet has argued that the social media posts:
Ms. Bendet seeks damages for the damage to her reputation as well as a permanent injunction restricting Mr Cooke from making further publications of this nature. Mr Cooke's lawyer, Chris Stakis, has said that Mr Cooke will defend the claim as the posts were made as part of a legitimate debate on important issues.
The legal action of defamation requires three elements:
1: The comments are communicated from one person (the defendant) to a third party;
2: The comments identify the aggrieved party (the plaintiff);
3: the comments are defamatory in nature (they reduce the reputation of the plaintiff or cause other people to dislike him or her); and
4: the defendant cannot rely on one of the available defences.
In Ms. Bendet's case the posts were published on Facebook and disseminated to more than one person-being all users who had access to that particular Facebook page. There is not enough evidence on the facts available to ascertain whether Ms. Bendet was identified by the post directly or indirectly but it is likely, with the specificity of the alleged comments made that she was sufficiently identified. The question will be whether Mr. Cooke's comments were in fact "defamatory".
In a defamation case there are a number of defences. The relevant defences are:
1: Truth: where the comment or imputation is held to be truthful, that is, comments about a man's criminal convictions that are proved, they are not defamatory in nature, they will be protected by the defence and the person who created the imputation will not be held liable.
2: Fair comment: a defendant is allowed to publish a fair comment. The comment must be made based on facts and the comment must be fair.
3: Honest opinion: this defence is analogous to fair comment. It requires that the comments be an expression of opinion, not fact, that relate to a matter of public interest and are based on proper material for comment.
Public discussion around crucial issues is part of an inclusive society that respects healthy debate. The question is-where do we draw the line between making informed assertions and making comments that damage reputations? And, is litigation the best path to take when you have potentially been defamed? A comment once posted, cannot be retracted. We have previously discussed defamation at some length in regards to a principal who sued eight people over his suspension, and a former Parents' Association president who sued a school principal over a letter to parents.
It is important to be aware of the visibility of your social media footprint. While comments are easily made, they are not as easily forgotten, and can be attributed to you even after you delete them. School Governance has reported on the misuse of Instagram by students recently. We have also discussed the importance of being aware of the risks and benefits to social media use here, here and here.
When posting on social media, be aware that a defamation claim can include the publication of photographs. This includes 'memes'-photographs with often humorous captions that are commonly spread online. Even if you are not the person who has instigated the post, and merely share it, for example by retweeting a tweet, you can be found liable of defamation. We have seen this outside of the education space recently.
A stockbroker, Mr. Aitken, has been dismissed from his company after two employees from ANZ brought up his comments via tweet about the new Chief Financial Officer of ANZ. The tweets, made by ANZ senior executives, indicated that Mr Aitken had made sexist remarks when he criticised the new ANZ CFO. Mr Aitken has initiated litigation proceedings against one of the ANZ executives for defamation, relying on the fact that the tweet was not true, that it disparaged his reputation-leading to his dismissal and that it was not a fair comment or honest opinion on the facts. He is also suing for intimidation and misleading and deceptive conduct according to a Financial Review article.
As we have seen, in defamation cases, all that is necessary is for one other person to have seen the imputation. It is predicted that defamation will be a burgeoning area of law with social media steadily increasing its presence.