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NSW Would Posting Comments on Facebook be Defamatory?

Discussion in 'Defamation Law Forum' started by franklyspeaking, 30 August 2016.

  1. franklyspeaking

    franklyspeaking Active Member

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    A person that I know is standing for Council Elections. I have the following:

    • I have some comments to make about their behaviour and am thinking of posting them on Facebook
    • They are related to my partner who is not in touch with them
    • I think they need to be challenged as to why they are standing and feel they are not fit and proper person
    • I would not be abusing or insulting, rather questioning some reasons they are standing and highlighting some family issues where they have behaved badly and questioning how they could be of benefit in public office.
    Would comments be defamatory, given they are standing for public office and as such open themselves up to comments? I am not wanting to open myself up to a defamation letter from a solicitor.
     
  2. Rod

    Rod Well-Known Member

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    More likely to increase any damages if they incur. People in public office sue all the time for defamation. Joe Hockey is a recent example, and before that we had the Abbott and Costello defamation case. These are just two of many defamation cases. Keeps a few lawyers employed :)

    Without seeing the comments hard to say. Truth is a defence, but you need to prove the claims are true if it goes to court.

    Comments on Facebook can count as defamatory material. Up to you to decide whether to run the risk.
     
  3. franklyspeaking

    franklyspeaking Active Member

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    I am related to the person that I am commenting about. In terms of proof would it be enough for it to be my word against theirs? Or would I need some sort of written proof?

    Also, I thought defamation cases were quite hard to get up.
     
  4. Rod

    Rod Well-Known Member

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    Not relevant to the judge

    Once the other party establishes a prima facie case for defamation, you need to prove a defence. He does not have to proof you have no basis for comments. So it is your burden to prove your defence. Fail on that and you lose the case. It might come down as to who is more believable in the witness box.

    You would be thinking wrong. You might be thinking that everyone can say whatever they like on social media and get away with it. This is wrong. Defamation via social media is still defamation. It is just that many people do not know they have a cause of action, or because it is done by friends/associates they deal with it outside of the courtroom.
     
  5. franklyspeaking

    franklyspeaking Active Member

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    No, I am not thinking that everyone can say what they like at all. I said I thought they were hard to get up - that is what a solicitor told me. They said that defamation was very hard to prove. Also Joe Hockey won that case against Fairfax but it was at considerable cost to him - emotionally and the money in the end was not that much that he was awarded.

    He did not even get the other parties costs awarded (although I could be wrong on that) but I seem to recall that was the case.
     
  6. Rod

    Rod Well-Known Member

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    Each case is different. Hockey is a clear example of overreach, he tried to claim too much and ended up with a Pyrrhic victory. If he had limited his statement of claims to the obvious wins he would have won and got all his costs reimbursed. Because he lost on some of his claims I think he only got about 50% of costs paid. I can only speculate as to why he did what he did, I don't know the man.

    Your solicitor might be thinking that political comment is fair comment and/or qualified privilege. And it is to a certain point. The judge in the case decides where that point is, not you, not me, and not any other solicitor.

    Fairfax thought they could sail close to the wind against Hockey, and lost - sort of. Expect they made some money on sales of newspapers/advertising to offset some legal bills. Partly a cost of business for them paying lawyers. Somehow don't think this applies in your situation.

    If you want to push ahead by all means do so. Let me know how you get on.
     
  7. Rod

    Rod Well-Known Member

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    BTW FYI, a barrister earlier this year was sued for defamation and lost.

    In another case a lawyer lost his claim for defamation after he objected being to be likened to Dennis Denuto (fictitious lawyer from the movie ' The Castle')

    Lawyers don't always get this area right!
     
  8. franklyspeaking

    franklyspeaking Active Member

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    Thanks and nice of you to take the trouble to reply so well.
     

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