This recent interesting case of Webster v Brewer (No 3) demonstrates that everyone can be held responsible for comments, statements posted on their social media accounts if it is found to be defamatory.

While this case does not directly involve employment law, it has interesting implications especially given the increasing use of social media to communicate between co-workers and the creation of workplace Facebook groups. It is not unlikely that employers could be found vicariously responsible for the actions of defamatory employees against other employees if it could be proven that it is sufficiently connected to the workplace under the Rose v Telstra test.

What is defamation?

In Victoria, this law is administered under the Defamation Act 2005 (VIC). A party has a right to claim compensation for defamation if the following elements are established:

1. There was a communication or publication to a third party;
2. The matter contained defamatory imputations (such as a false representation or blatant lies that is likely to damage the individual or company’s reputation);
3. The communication or publication concerned or identified the individual or company; and
4. The communication or publication was made without lawful excuse.

What happened in this case?

In this case, an online conspiracy theorist Karen Brewer had engaged in defamatory conduct by posting many videos and comments to her personal Facebook page about Federal MP Anne Webster, her husband (a doctor in the Mildura community) and Zoe Support their medical clinic in Mildura that specialises in assisting young and disadvantaged mothers and their children. The posts suggested that Ms Webster and her husband were involved in a secret criminal network which involved the sexual abuse of children. Ms Brewer a New Zealand resident did not submit a defence or attend the hearing.

Justice Gleeson determined there was clear communication and publication by Ms Brewer of defamatory material that was found to be completely untrue; Ms Webster and her husband had many witnesses who attested to their integrity and unblemished characters. The defamatory posts had evidently been made without any factual basis.

The Court also determined that there was detriment to the reputations of Ms Webster, her husband and Zoe Support as suggestible individuals making up a  “small but not insignificant segment of the Mildura community” would believe the claims. There was evidence that this caused personal trauma and distress to the individuals and affected the business of the company, as there was a drop in monthly referrals. Justice Gleeson found that the most harmful aspect of the offences was the impact it had on young women who may have been deterred from seeking the support they needed from Zoe Support.

The Court ordered significant damages of $875,000 and an interlocutory injunction which permanently restrained Ms Brewer from publishing the defamatory posts or similar material against the parties ever again. The damages are significant as it exceeds the statutory cap of $421,000. The damages are substantially higher due to the aggravated factors.

Justice Gleeson noted the following when making the order:

• Court must consider “grapevine effect” – acknowledging that defamatory material can spread beyond those to whom the material is published to;
• Damages must be significant enough to convince a bystander of how baseless the allegations are;
• They must compensate for injured feelings, sense of indignity, loss of self-esteem;
• Defamatory statements cannot be made about public figures simply because they are in the public space;
• Ms Brewer showed no remorse or contrition for her actions;
• Ms Brewer had engaged in repetition of the libel including posting another video after the charges had been laid; and
• There was no defence that Ms Brewer’s conduct was justifiable.

Some key points to take away:

1. Employers should have a social media policy that clearly states how employees are to conduct themselves as representatives of the employer but also in a personal context when conversing with co-workers
2. Remember a conversation between co-workers is sufficient to link any misconduct back to the workplace, as such employers must continually re-emphasize the important of respectful dialogue between co-workers even in the digital space
3. If you become aware of any defamatory comments made by your employees, you need to ensure that you discipline them in line with your policies otherwise you could be held vicariously responsible

Written by Nina Hoang

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