In the case of Dabrowski v Greeuw ([2014] WADC 175), the District Court of Western Australia awarded a husband defamation damages of Aus$12,500 against his estranged wife as a result of a defamatory post on Facebook.
The plaintiff, Miro Dabrowski, is a schoolteacher and brought the proceedings against his estranged wife, Robyn Greeuw. It was tried in the District Court in Perth, over a period of 9 days, with the defendant acting in person.
In December 2012, the defendant posted the word on her public Facebook page
“separated from Miro Dabrowski after 18 years of suffering domestic violence and abuse. Now fighting the system to keep my children safe”
It was drawn to the plaintiff’s attention by his brother and four other witnesses gave evidence that they had seen it.
One witness gave evidence that she went on a date with the plaintiff and upon returning home went onto Facebook to see what his ex-wife looked like. She said that she opened the defendant’s Facebook page and saw the disputed post which left her shocked, horrified, confused and upset.
The defendant denied that she had posted these words on Facebook. She said she was unfamiliar with Facebook and did not realise that what she typed had been uplifted to her public Facebook site [147].
This evidence was rejected by the judge who held that she typed the words and posted them to her public Facebook page [148]
The judge found that the words bore the following defamatory imputations in relation to the plaintiff:
(a) He subjected Ms Greeuw to domestic violence over a period of 18 years;
(b) He abused Ms Greeuw over a period of 18 years;
(c) Their children are not safe in his presence. [168] and [182].
The defendant relied on the defence of justification. This was rejected by the judge who concluded that
“There is no independent evidence to support Ms Greeuw’s allegation of domestic violence or abuse by Mr Dabrowski towards the children or that the children need to be protected from him. The only evidence to support those claims was from Ms Greeuw and she is not a credible witness and I do not accept her evidence in this regard” [239]
Even applying the extended definition of the words ‘domestic violence and abuse’, as urged by the defendant, she failed to prove any essential or substantial truth to the stings of the defamation imputations [246].
In assessing damages, the judge accepted that the allegations were serious ones [253]. As to the extent of publication, the post was first seen on 26 December 2012 and was removed on about 6 February 2013. It was seen by at least three witnesses but was generally available.
The judge also took into account the “mode, medium and manner” of publication, noting in particular that:
Defamatory publications on social media spread easily by the simple manipulation of computers. A public Facebook page is able to be viewed worldwide by whoever clicks on that page and the grapevine effect stemming from the use of this type of medium must be considered: Mickle v Farley [2013] NSWDC 295. However it must also be recognised that Facebook is a source other than a mainstream news or information provider [265].
However, although the defamation was not trivial “the fact it was on Facebook and made by the estranged spouse is part of the relevant context” [267]. However, the “grapevine effect” could mean that the defamatory imputations were repeated.
The judge then considered, and rejected, the plaintiff’s claim for aggravated damages ([269] to [290]).
In summary on damages the Judge said
“I have no doubt that the post caused Mr Dabrowski personal distress, humiliation and hurt and harm to his reputation and it did cause people to ‘look at him twice’ and be more reserved about their contact with him [291].
He is an experienced educator and is entitled to public vindication [292].
I have found that the defence of justification has not been established. Ms Greeuw’s persistence in that defence and her denial of the publication are properly taken into account in assessing damages as is the grapevine effect [293].
There was no financial loss; the remarks were made to a limited audience, and were at the end of the day a Facebook post made by an estranged spouse and removed about six weeks after it was posted. [294]
He concluded that an award of damages of Aus$12,500 as “realistic and appropriate”.
Comment
This case is yet another illustration of the need for care when making postings on social media. A Facebook post is a publication which can, potentially, reach large numbers of readers and cause serious damage to someone’s reputation. There is, from the point of view of legal principle, no difference between defamatory publication on social media and defamatory publication in the mainstream media.
The allegation made by the defendant in this case was a serious one. The defence of “truth” failed. As a result, despite the fact that the post could only be shown to have been published to a relatively small number of individuals it attracted a substantial award of damages.
It is interesting to consider whether the result in such a case would have been the same in England and Wales under the Defamation Act 2013. As a result of section 1 of that Act, a person making the same claim in the English courts would have to show that the post “had caused or was likely to cause” serious harm to his reputation.
The evidence before the District Court relevant to “damage to reputation” was as follows:
- The plaintiff’s brother, after seeing the post, had doubts about his character and wondered whether he and his children were safe with him.
- Another witness said she had “concerns” about his character and was “really unsure about him”. The judge, however, rejected her evidence that she did not want to socialise with the plaintiff.
- The third witness was a woman who had been dating the plaintiff but after she saw the post discontinued the relationship. She continued to see him socially however and did not think the post true. The relationship resumed the following year.
On the basis of the approach taken by Bean J in Cooke v MGN ([2014] EWHC 2831 (QB)) it is difficult to see how this evidence could, of itself, satisfy the “seriousness” threshold in section 1. In the absence of evidence of further publication it seems likely that this action would have been struck out by an English court if the publication had taken place after 1 January 2014.
It might be thought surprising that a person has no remedy in respect of a false allegation which has a substantial negative effect on his personal life and relationships but this was, at least on Bean J’s view, the intent of the UK parliament.
Our recent post reviewing media law in 2014 from an Australian perspective shows that there is considerable admiration for the Defamation Act in that country. Considerations of the possible impact of the Act on cases such as Dabrowski v Greeuw may reinforce those views.
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