On 7 February 2020 the Supreme Court of Western Australia held that Mr Gregory McIntosh had defamed Mr Paul Andrew Armstrong when he sent four text messages to a close friend that made certain imputations about the Plaintiff. The Plaintiff was awarded $6,500 in damages, including $1,500 for aggravated compensatory damages, and an injunction was issued against Mr McIntosh restricting him from publishing the words or any similar words defamatory of the Plaintiff.
The decision handed down in Armstrong v McIntosh [No 4]  WASC 31 has revealed the Court's willingness to crack down on reputational attacks made through digital communication pathways, and is a very real reminder of the need to be wary when sending private communications that contain any potentially defamatory content. This standpoint is demonstrated by the Court's approach towards:
- Accepting that text messages can constitute defamatory publications where they constitute 'considered statements'; and
- By holding that the Thornton threshold principle applies to defamation cases in Australia.
One of the key questions in the case was whether the text messages sent by the Defendant were sufficient to constitute defamatory publications, given that they were made privately to a person to whom the plaintiff was not in a business or otherwise close relationship. The person to whom the text messages were sent was a close friend of the Defendant and had only met the Plaintiff 'two or three times' and did not 'know what the plaintiff does'.
Le Miere J considered a new class of reader being 'social media users' which is discussed in UK case law. Le Miere J applied the test of what an ordinary reasonable reader would make of the publication, acknowledging that social media is generally a casual, conversational medium where posts are not analysed in depth. The Court held that the text messages sent by the Defendant were different from the usual 'spontaneous, informal text messages often sent to family or friends', and that they were comparatively longer, structured, and grammatically correct. Importantly, Le Miere J emphasised that the ordinary reader would read the text messages as considered statements, as opposed to informal text messages.
Thornton principle – Seriousness of Publication
The second important consideration in this case was whether the text messages were sufficiently serious to be defamatory given the nature of their publication.
The Court applied the Thornton principle (substantive threshold of seriousness), which only considers the meaning of the words published when determining the 'seriousness' of the imputations and their impact. The emphasis is on whether the words or statements substantially affects, in an adverse manner, the attitude of other people towards the defamed person, or has a tendency to do so.
By stating that this principle is part of Australian defamation law, Le Miere J has made it clear that a publication need not have actually caused any harm to the plaintiff's reputation. Le Miere J held that the text messages contained serious imputations directed to the plaintiff's character and that the tendency of the words complained of were capable of sustaining harm to the plaintiff by lowering the plaintiff in the estimation of right thinking members of society generally.
The circumstances of publication for each of the text messages were not proven by the defence to have been made in circumstances that were unlikely to sustain any harm.
Defamation on the rise
This is only one of a number of decisions that consider defamatory publications made through social media or other electronic communication platforms.
Earlier this month an Adelaide lawyer, who lost 80% of his clients after a negative review was posted on Google, was awarded $750,000. The lawyer had never been retained by the woman who created the review, and they had never had any contact. The woman had evaded service, amended the name on the google review multiple times, and refused to take the review down.
These cases prove that defamation laws apply just as strongly in the virtual sphere as they do out of it. They also signal an impending increase in defamation actions in the future. Whether it be vitriolic comments made on Facebook, Google, Linkedin or other social media sites, or damaging communication exchanges made through more private channels, the law is shifting to protect the reputations of injured persons.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.