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NSW Accused of Making an Accusation on Facebook - Defamation?

Discussion in 'Defamation Law Forum' started by fa189, 6 February 2016.

  1. fa189

    fa189 Member

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    Hi there. The story goes...

    On a facebook post, a friend put up a photo that he had found on Instagram where I assume was meant to be him and his mates. However, the photo he found had all their faces censored out.

    The clear intention of him posting it was to joke with his facebook friends about it. I don't believe his profile can be seen publicly, only by those on his friends list, who I assume most know him or of him and what he is like.

    People commenting that the faces must be censored out because of this and that, one example of one comment saying they are all terrorist. I commented jokingly as well, "protected paedophiles", not the best joke in the world, but was commenting as everyone else was saying similar things, on a photo where, keep in mind, all faces were censored.

    I got a hit from the man's wife getting into a taxi last week after exiting a hotel, where she was yelling claiming I was actually accusing her husband of being a paedophile. I did go the station after this to report the assault and I showed the cop my comment and asked for his honest opinion if it looked like I was actually accusing anyone of being a paedophile. He did a little laugh like it was a silly question and said that it didn't look that way.

    Now after explaining this, what do people here think? I understand while others were making similar jokes on a joke post with censored faces, that it was not the best joke to still make, but there were others who messaged me who could also see it clearly wasn't meant to be an accusation on my behalf.

    Does it sound like I have made an accusation when explaining it? And if not, for his wife to be yelling out publicly in a hotel claiming that I claimed he is a paedophile, is that then defamation against me on her behalf?

    I also did delete my comment after being asked to but I did keep screenshots of it.

    Thank you .
     
  2. Sophea

    Sophea Well-Known Member

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    Hi fa189,

    In order for there to be actionable defamation under Australian law, you need to establish 3 things. You can read about it more in this article: Have You Been Defamed? What You Need to Know About Defamation Law in Australia - Legal Blog - LawAnswers.com.au

    The long and short of it is you need 3 things: publication, identification and defamatory content. There is no doubt, in this case, there has been publication of a potentially defamatory content, however, "identification" may be more difficult. Given that the men's faces have been censored most people may not be able to associate the defamatory content with a specific person. However, friends who can identify the people in the picture despite their faces being censored may still be able to associate the defamatory comments with specific individuals.

    However, in this case, where there was no malicious intent and you have removed the comment. I doubt much will come of it. I can understand however why his wife would have been hurt by the allegation/joke/comment. So I would be a little careful what you post in the future.
     
    fa189 likes this.
  3. fa189

    fa189 Member

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    Thanks for your reply Sophea. I definitely will be more careful with what I say in the future no matter if there is no malicious intent or not :)
     

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